...C.j:.(&cn.uL.. 
LAW    BOOKS 

257  So.  Spring  St.,  Room  210 
Mutual  4473 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


,^ 


Of  elementary  treatises  on  all  the  principal  subjects  of  the  law.    The 
special  features  of  these  books  are  as  follows : 

1.  A  succinct  statement  of  leading  principles  in  black- 

letter  type. 

2.  A  more  extended  commentary,  elucidating  the  princi- 

ples. 

3.  Notes  and  authorities. 

PubUshed  in  regular  octavo  form,  and  sold  at  the  uniform  price  of 
$3.75  per  volume,  including  delivery. 

Bound  in  American  Law  Buckram. 


1.  Norton  on  Bills  and  Notes.     (3d  Ed.) 

2.  Clark's  Criminal  Law.     (2d  Ed.) 

3.  Shipman's  Common-Law  Pleading.     (2d  Ed.) 

4.  Clark  on  Contracts.     (2d  Ed.) 

5.  Black's  Constitutional  Law.     (2d  Ed-) 

6.  Fetter  on  Equity. 

7.  Clark  on  Criminal  Procedure. 

8.  Tiffany  on  Sales.     (2d  Ed.) 

9.  Glenn's  International  Law. 

10.  Jaggard  on  Torts.     (2  vols.) 

11.  Black  on  Interpretation  of  Laws. 

12.  Hale  on  Bailments  and  Carriers. 

13.  Smith's  Elementary  Law. 

14.  Hale  on  Damages. 

15.  Hopkins  on  Real  Property. 

16.  Hale  on  Torts. 

17.  Tiffany  on  Persons  and  Domestic  Relations. 

18.  Croswell  on  Executors  and  Administrators. 

19.  Clark  on  Corporations.     (2d  Ed.) 

20.  George  on  Partnership. 

21.  Shipman  on  Equity  Pleading. 

22.  McKelvey  on  Evidence.     (2d  Ed.) 

23.  Barrows  on  Negligence. 

24.  Hughes  on  Admiralty. 

25.  Eaton  on  Equity. 

26.  Tiffany  on  Principal  and  Agent 

27.  Gardner  on  Wills. 

28.  Vance  on  Insurance. 

29.  Ingersoll  on  Public  Corporations. 

30.  Hughes  on  Federal  .Jurisdiction  and  Procedtire. 

31.  Chi  Ids  on  Suretyship  and  Guaranty. 

In  preparation :     ITandbcoks  of  the  law  on  other  subjects  to  be  announced 
later. 

Published  and  for  sale  by 
WEST  PUBLISHING  CO.,  ST.  PAUL,  MINN. 


C.>S.-..-)b 


HANDBOOK 


OF    TIIK 


LAW   OF  SALES 


SECOND  EDITION  REVISED 


By  FRANCIS  B.  TIFFANY 

AUTHOR  OF  DEATH  BY  WRONGFUL  ACT 


ST.  PAUL,  MINN. 

WEST  PUBLISHING  CO. 
1908 


OOPYBIGHT,    1S95, 
BY 

WEST   PUBLISHING  COMPANY. 


Copyright,  1008, 

BY 

WEST  PUBLISHING   C0:MPANY. 


TirF.SALES(2D  Ed.) 


T 


I'Rl-FACH  TO  S1-:C0X1)  HDITION. 


In  this  edition  a  good  deal  of  new  matter  has  been  added, 
many  changes  in  arrangement  have  been  made,  and  chapters 
1,  3,  4,  7,  and  li»  have  been  partly  rewritten.  Many  cases  re- 
])ortcd  since  the  first  e(Htion,  especially  on  mooted  points,  have 
been  cited  in  the  notes. 

It  has  been  deemed  advisable  to  prin*^  in  an  apjKndix  the 
prciposed  Sales  Act,  recommended  by  the  Commissioners  on 
I'niform  State  Laws,  which  has  already  been  enacted  in  sev- 
eral states,  and  which  bids  fair,  like  the  Netjotiable  Instru- 
ments Law.  to  he  adopted  generally.  The  act.  like  the  English 
Sale  of  Goods  Act,  on  which  it  is  based,  is  in  the  main  declara- 
tory of  the  law,  and  is  valuable  as  furnishing  statements  of 
rules  which,  for  the  most  part,  are  of  universal  application.  To 
a  gVeat  extent,  the  statement  of  rules  and  principles  in  the 
black-letter  text  has  been  made  to  conform  to  the  language  of 
the  Sales  Act.  References  to  the  appropriate  sections  are  made 
in  the  notes,  care  being  taken  to  point  out  changes  proposed, 
or  effected  in  states  which  have  adopted  the  act.  For  purposes 
of  comparison,  the  Knglish  Sale  of  Goods  Act  also  has  been 
printed  in  the  appendix,  and  frequent  references  to  it  are  made 
in  the  notes.  F.  D.  T. 

St.  Paul,  Oct.  1.  1907. 

(▼) 


fi6V5S5 


PREFACE  TO  FIRST  EDITION. 


The  object  of  this  handbook  is  to  present  concisely  the  gen- 
eral principles  of  the  law  of  the  sale  of  personal  property.  The 
arrangement  is  in  the  main  that  of  Benjamin.  The  statement 
of  rules  and  principles  in  the  black-letter  text  has  to  a  consid- 
erable extent,  though  with  many  modifications,  necessitated  by 
the  differences  between  the  American  and  English  law,  or  by 
other  reasons,  been  taken  from  the  English  Sale  of  Goods 
Bill,  as  drafted  by  his  Honor,  Judge  Chalmers,  and  published 
together  with  his  invaluable  notes  under  the  title  of  "The  Sale 
of  Goods."  This  bill,  which  was  purely  a  codifying  measure, 
has  since  been  substantially  enacted  as  "An  act  for  codifying 
the  law  relating  to  the  sale  of  goods"  (56  &  57  Vict.  c.  71 ;  Feb- 
ruary' 20,  180-i).  The  writer  has  made  frequent  use  both  of  the 
notes  of  Judge  Chalmers  and  of  the  text  of  Benjamin  on  Sales. 
The  references  to  Benjamin  are  to  the  sections  as  found  in 
the  sixth  [now  seventh]  American  edition,  of  Messrs.  Ed- 
mund H.  and  Samuel  C.  Bennett.  F.  B.  T. 

St.  Paul,  June  1,  1895. 

(vl) 


TABLE  OF   CONTENTS. 


CHAPTER  I. 


FORMATION   OF    THE   CONTRACT. 

Section  Page 

1—4.  In    General l-'> 

5.  Sale  Distinguished  from  Other  Transactions 0-13 

6-7.  Capacitj-  of  Parties 13-14 

8.             Infants    U  -1 

i>.             Luuatii-s  and  Drunken  Mi'u IM-lil 

10.  Married    Women -•"•  -•' 

11.  Who  can  Sell -0-14 

11M!-13.  Subject-Matter  of  Sale 44-.")0 

14-15.  Mutual  Assent  and  Form  of  Contract SO-'jU 

16-17.  The  Price 5'J-Gl 


CHAPTER  n. 


FORMATION   OF   CONTRACT   (Continued)— UNDER  'J'llE   STAT- 
UTE OF  FRAUDS. 

18-20.     What  Contracts  are  Within  the  Statute <rJ-71 

21-22.     What  are  Goods,  Wares,  and  Jlerchandise 72-4JO 

2.'?.  What  is  a  Contract  for  the  Price  or  Value  of  £10 

($50)    80-82 

24-26.     Acceptance  and  R^-ceipt 82-85 

27-29.  Acceptance 85  IKJ 

30-31.  Actual    Receipt a*?  07 

32-33.     Earnest  or  Part  Payinonr OS-Kki 

34-36.     The  Note  or  Memoranduin lOo-llo 

37-38.  Signature  of  the  Party 110-112 

30-40.  Agents  Authorized  to  Sign 112-117 

41.     Effect  of  Noncompliance  with  the  Statute 117-118 

Tiff.Sales(2d  En.)  (vil) 


Vlll  TABLE    OF   CONTENTS. 


CHAPTER  III. 

EFFECT  OF  THE  CONTRACT  IN  PASSING  THE  PROrERTT— 
SALE  OF  SPI-:CIFIC  GOODS. 
Section  Page 

42.  In   General 119-121 

43.  RiUes  for  Ascertaining  Intention 121-lo0 

44.  Reservation  of  Right  of  Possession  or  Property. .  .130-143 

45.  Sale  on  Approval  or  Trial 143 

46.  Sale  or  Return 144-146 


CHAPTER  IV. 

EFFECT  OF  THE  CONTRACT  IN  PASSING  THE  PROPERTY 

(Continued)— SALE  OF  GOODS  NOT  SPECIFIC.  . 

47-48.     In    General 147-151 

49-50.     Subsequent   Appropriation 151-162 

51-53.     Reservation  of  Right  of  Possession  or  Property. .  .162-173 


CHAPTER  V. 

FRAUD  AND  RETENTION   OF   POSSESSION. 

54-55.     Contract  or  Sale  Induced  by  Fraud 174-187 

56-.57.  Remedies  of  Defrauded  Party 188-197 

58-59.     Fraud  on  Creditors — Retention  of  Possession 197-203 

60.     How   Far   Delivery  is   Essential   to   Transfer  of 

Property  against  Creditors  and  Purchasers. ..  .204-207 


CHAPTER  VI. 

ILLEGALITY. 

61-02.     In    General 208-209 

63-64.     Sales  Prohibited  by  Common  Law 209-212 

65.     Sales  Prohibited  by  Statute 213-219 


TABLK    OF   CONTKNTS. 


ix 


section  PuK'- 

m-iVi.     Effort  of  Ill(';:!ility 210  2J4 

GO.     CoiiMitt   of    Laws '_'_'4-_'2.". 


CHAPTER  VII. 


70-72. 
73-7."». 


7M. 
7"J. 


CONDITIU.NS    AM)     W  A  KK.\.NTI  HS. 

In    Goiu'i-al 22(^2:!t; 

WarrantifS 'SAf,  '2i'2 

Iiiii>li<Hl  Warranty   of  Tillo 242--J1T 

Iniiilit'il  Warranty  in  Sale  by  Description 247-2."2 

Inu>li«'d   WarrantifS  of  c^iality 2.VJ  -Jf,.! 

luil»lied  Warranties  iu  Sale  by  Sample 202-2G7 


CHAPTER   Vin. 

PKRFoli.MAM  i;    OF    ( '( (NTItACT. 

80-8L  In    (Jeueral 2(KS-2n;» 

82.  Delivery     20;) 

83-85.  Place,  Time,  and  Manner  of  Delivery 27i»  28<» 

8G-88.  Delivery  of  Wrong  t^iantity 2.si--JS«! 

89.  Delivery  by  Installments 2s7  2;X) 

90-91.  Delivery  to  f 'arrier -J'.mi  2'.t:; 

92-93.  Buyer's  Kijibt  to  Kxanilne  (Joods L".M-2'.m; 

94.  Acceptance    207-301 

95-96.  Payment    302-304 

97-99.  E.xcuses  for  Nonperformance  of  Conditions 305-310 


CHAPTER  IX. 

RinilTS  OF  UNPAID  SKl.LFU  A(JA]^^^T  THE  GOODS. 

lOo.  In    ( Jeneral 311 

101-10.-..  Seller's    Lien :!12  :{2-_' 

lOC-lo*.*'-..  Stuppajre   in   Transitu :;22  :'h!s 

110.  RiKbt  of  Resale .-{.lO  342 

111.  Right  to   Rescind 342-34.3 


TABLE   OF   CONTENTS. 


CHAPTER  X. 

ACTIONS  FOR  BREACH  OF  THE  CONTRACT. 
Section  Page 

112.     Remedies  of  Seller— Action  for  Price 344^348 

113-114.  Action  for  Damages  for  Nonacceptance 348-3.j3 

115.  Remedies  of  the  Buyer — Action  for  Failing  to  De- 

liver   Goods 353-3G0 

116.  Specific  Performance 3G0-361 

117.  Recovery  upon  Failure  of  Consideration 301-364 

118.  Action  for  Converting  or  Detaining  Goods. .  .304-365 

119.  Breach  of  Warranty — Rights  before  Accept- 

ance     365-367 

120-121.  Rights  after  Acceptance 36S-379 


APPENDIX. 


SALES  ACT. 
(Pages  381-412.) 

ENGLISH   SALE  OF  GOODS  ACT. 
(Pages  413-435.) 


HANUBOOt 


OP 


THE   LAW   OF   SALES 

SECOND    EDITION 


CHAPTER  I. 

FORMATION  OF  THE  CONTRACT. 

1-4.  In    Geneial. 

5.  Sale  DistiiiKui-slied  from  Other  Transactions. 

G-7.  Capacity  of  Parties. 

8.  Infants. 

9.  Lunatics  and  Drunken  Men. 

10.  Married  Women. 

11.  Who  can  Sell. 
IIV2-13.     Subject-Matter  of  Sale. 

14-15.     Mutual  Assent  and  Form  of  Contract. 
16-17.    The  Price. 

IN  GENERAIi. 

1.  SALE  OF  GOODS.  A  sale  of  goods  is  an  agreement  where- 
by one  party,  called  the  seller,  transfers  the  property 
in  goods  to  the  other  party,  called  the  bnycr,  for  a 
price  in  money,  Tirhich  the  buyer  pays  or  agrees  to  pay.  ^ 

»  Following,  substantially,  Sales  Act,  §  1  (2).  Cf.  Sale  of  Goods  Act, 
§1. 

The  following  are  some  of  the  definitions  of  "sale":  "A  transmuta- 
tion of  property  from  one  man  to  another  in  consideration  of  some 
price."  2  Rl.  Comm.  44G.  "A  contract  for  tlio  transfer  of  property 
from  one  person  to  another  for  a  valuable  consideration."     2  Kent, 

Tiff.Sale9(2d  En.)— 1 


2  FORMATION   OF   THE   CONTRACT.  (Ch.  1 

2.  CONTRACT  TO  S£IiL.     A  contract  to  sell  goods  is  a  con- 

tract whereby  the  seller  agrees  to  transfer  the  prop- 
erty in  goods  to  the  buyer  for  a  price,  \irhich  the  buy- 
er pays  or  agrees  to  pay.2 

3.  GOODS.     Goods   include    all    chattels   personal   other   than 

things  in  action  and  money. 

4.  PROPERTY.     Property    means    the    general    property    in 

goods,  and  not  merely  a  special  property. 

Sale. 

At  common  law  the  transfer  of  personal  property,  at  least 
of  all  personal  property  that  is  included  under  the  term 
"goods,"  ^  unlike  the  transfer  of  real  property,  is  effected  by 
the  mere  agreement,  verbal  or  written,  of  the  parties.  If  the 
present  transfer  of  the  property  in  specific  goods  for  a  price 
be  agreed  upon,  the  property  in  them  passes  from  seller  to  buy- 
er, without  delivery,  by  their  mere  mutual  assent*  The  agree- 
ment by  which  the  transfer  is  thus  effected  is  called  a  "sale," 
or  a  "bargain  and  sale."  The  bargain  struck,  the  transfer  re- 
sults by  operation  of  law.  The  term  "sale"  is  often  apphed, 
indeed,  to  the  transfer  itself,  and  a  sale  is  sometimes  defined 
as  the  transfer  of  the  property  for  a  price  in  money. ^  The 
proposed  Sales  Act  defines  a  sale  of  goods  as  "an  agreement 
whereby  the  seller  transfers  the  property  in  goods  to  the  buy- 
er for  a  consideration  called  the  price,"  and  this  use  of  the 
term  seems  preferable.^ 

Contract  to  Sell — Distinguished  from  Sale. 

A  contract  whereby  the  seller  agrees  to  transfer  the  prop- 
erty in  goods  to  the  buyer,  for  a  price,  at  a  future  time  or  on 

Comm.  (12th  Ed.)  4G8.  "A  transfer  of  the  absolute  or  general  prop- 
erty in  a  thing  for  a  price  in  money."  Benj.  Sales  (7th  Am.  Ed.)  §  1. 
"Sale  is  the  exchange  of  property  for  a  price.  It  involves  the  transfer 
of  the  ownership  of  the  thing  sold  from  the  seller  to  the  buyer."  In- 
dian Contract  Act  1872,  §  77.  "A  sale  of  personal  property  is  the 
transfer,  in  pursuance  of  a  valid  agreement,  from  one  party,  called 
the  seller,  to  another,  called  the  buyer,  of  the  general  or  absolute  title 
to  a  specific  chattel,  for  a  price,  or  a  consideration  estimated,  in  mon- 
ey," Mechem,  Sales,  §  1.  See  Blackb.  Sales,  Introduction;  William- 
son V.  Berry,  8  How.  (U.  S.)  544,  12  L.  Ed.  1170. 

2  See  Sales  Act,  §  1  (1). 

» Post,  p.  4.  6  See  note  1,  supra.  ' 

«  Post,  p.  121.  «  Sales  Act,  §  1  (2). 


§§  1-4)  IN   GENERAL.  3 

the  performance  of  a  condition,  is  a  contract  to  sell.  Tlic  term 
"contract  of  sale"  is  often  used  to  include  both  sales  and  con- 
tracts to  sell;^  and  a  sale  is  sometimes  described  as  an  "ex- 
ecuted contract  of  sale,"  or  an  "executed  sale,"  and  a  con- 
tract to  sell  as  an  "executory  contract  of  sale,"  or  an  "executory- 
sale." 

The  distinction  between  sales  and  contracts  to  sell  is  funda- 
mental. There  cannot  be  a  sale  unless  the  goods  are  "specific" 
— that  is,  unless  the  goods  are  identified  and  agreed  upon  at  the 
time  the  sale  is  made ;  ^  whereas,  there  can  be  a  contract  to 
sell,  although  the  goods  are  not  ascertained,  and  are  not  yet  in 
existence  or  acquired  by  the  seller."  Again,  a  contract  to  sell 
is  a  contract  pure  and  simple,  while  a  sale  is  in  the  nature  of  a 
conveyance.  "By  an  agreement  to  sell,"  says  Judge  Chal- 
mers,^" "a  jus  in  personam  is  created ;  by  a  sale  a  jus  in  rem  is 
transferred.  Where  goods  have  been  sold,  and  the  buyer  makes 
default,  the  seller  may  sue  for  the  contract  price,  but  where 
an  agreement  to  buy  is  broken,  the  seller's  remedy  is  an  action 
for  unliquidated  damages."  If  an  agreement  to  sell  be  broken 
by  the  seller,  the  buyer  has  only  a  personal  remedy  against  the 
seller.  The  goods  are  still  the  property  of  the  seller,  and  he 
can  dispose  of  them  as  he  likes.  They  may  be  taken  in  execu- 
tion for  his  debts,  and,  if  he  becomes  bankrupt,  they  pass  to 
his  trustee.  *  *  *  But  if  there  has  been  a  sale,  and  the 
seller  breaks  his  engagement  to  deliver  the  goods,  the  buyer 
has  not  only  a  personal  remedy  against  the  seller,  but  also  the 
usual  proprietary  remedies  in  respect  of  the  goods  themselves, 
such  as  the  actions  for  conversion  and  detinue.'-  In  many 
cases,  too,  he  can  follow  the  goods  into  the  hands  of  third  par- 
ties. Again,  if  there  be  an  agreement  for  sale,  and  the  goods 
are  destroyed,  the  loss,  as  a  rule,  falls  on  the  seller;  while,  if 
there  has  been  a  sale,  the  loss,  as  a  rule,  falls  on  the  buyer, 
though  the  goods  have  never  come  into  his  possession."  '• 


'  Sale  of  Goods  Act.  §  1. 

8  Post,  p.  147.    "Specific  goods,"  eee  Sales  Act,  §  70  (1). 

»  Post,  p.  45  et  seq. 

10  Chalmers.  Sale  of  Goods  Act  (6th  Ed.)  p.  7. 

11  Post,  p.  344.  12  Post.  p.  304.  "  Post,  p.  141. 


4  FORMATION  OF  THE  CONTRACT.         (Ch.  1 

Goods. 

Broadly  speaking,  anything  of  value  may  be  the  subject  of 
sale.  "It  is  not  necessary,"  said  Story,  "that  the  subject  of 
sale  should  have  a  physical  and  corporeal  existence  and  be  sus- 
ceptible of  manual  delivery ;  for,  provided  it  have  actual  value, 
however  intangible  it  may  be,  it  may  nevertheless  be  sold."  ^* 
Thus  a  copyright, ^^  or  the  right  to  copyright  a  work,^®  or  an 
invention  before  issue  of  letters  patent,^ ^  may  be  sold.  And 
in  a  broad  sense  even  a  chose  in  action  may  be  sold.  Neverthe- 
less the  subject-matter  of  sale,  using  the  word  in  a  narrower 
sense,  is  "goods,"  a  term  which  does  not  include  all  kinds 
of  personal  property. 

The  law  of  Sales  relates  peculiarly  to  the  transfer  of  the 
property  in  goods,  a  term  which  applies  to  all  tangible  movable 
property  except  money/®  and  does  not  include  choses  in  action. 
It  is  true  that  in  this  country  it  is  generally  held  that  negotiable 
instruments,  as  well  as  shares  of  stock  and  other  choses  in  ac- 
tion, "which  are  the  subject  of  common  sale  and  barter  and 
which  have  a  visible  and  palpable  form,"  are  comprehended 
within  the  term  "goods,  wares,  and  merchandises,"  as  used  in 
the  statute  of  frauds,  and  that  by  some  courts  it  is  even  held 
that  other  choses  in  action  are  comprehended  in  these  words ;  ^' 
but  the  assignment  of  things  in  action  is  governed  by  different 
rules  than  those  that  govern  the  transfer  of  the  property  in  chat- 
tels personal  which  are  susceptible  of  delivery.  Negotiable  in- 
struments, indeed,  stand  upon  a  somewhat  different  footing 
from  other  choses  in  action,  for  they  are  susceptible  of  de- 
livery; but  the  legal  title  to  such  instruments  is  transferred, 
not  by  sale  in  its  narrower  sense,  but  by  negotiation.-*'  Things 
attached  to  the  land,  again,  as  a  rule,  form  part  of  the  realty, 
and  are  not  included  in  the  term  "goods,"  though,  when  sev- 
ered from  the  land,  they  become  goods.    Thus  a  contract  to  sell 

14  Story   Sales   (4th   Ed.)   §   187. 

16  Black  V.  Heury  G.  Allen  Co.  (C.  C.)  42  Fed.  GIS,  9  L.  R.  A.  43S. 
16  Callagban  v.  IMyers,  128  U.  S.  617,  9  Sup.  Ct.  177,  32  L.  Ed.  547. 
IT  Snmerbv  v.  Bimtin,  118  Mass.  270,  19  Am.  Rep.  459;    Dalzell  v. 
Watch-Case  Mfg.  Co.,  149  U.  S.  315,  13  Sup.  Ct.  886,  37  L.  Ed.  749. 

18  See  Chalmers,  Sale  of  Goods  Act  (6th  Ed.)  p.  124.  As  to  money, 
see  post,  p.  72. 

19  Post,  p.  73.  20  Norton,  Bills  &  Notes  (3d  Ed.)  2CK). 


§§14)  IN   OEXEUAL.  P 

Standing  trees,  or  the  materials  in  a  building:  upon  the  land,  if 
the  contract  contemplates  a  present  sale  before  severance,  is 
g^cnerally  held  to  be  a  contract  for  the  sale  of  an  interest  in 
land;  although,  if  it  contemplates  a  severance  before  sale,  it  is 
a  contract  to  sell  the  goods.^^  Certain  products  of  the  soil, 
indeed,  termed  "fructus  industriales,"  or  "emblements,"  which 
are  the  product  of  annual  labor,  such  as  wheat  and  potatoes,  are 
chattels,  and  arc,  perhaps,  to  l>c  included  in  goods.--  The  cases 
involving  the  determination  of  the  character  of  things  attached 
to  the  soil  have  usually  arisen  under  the  statute  of  frauds,  where 
it  becomes  material  to  determine  whether  a  contract  is  for  the 
sale  of  "goods,  wares,  and  merchandises,"  or  an  interest  in 
land,  and  different  views  have  been  taken  by  different  courts. 
These  questions  will  be  discussed  latcr.^^ 

The  proposed  American  Sales  Act,  following  the  English 
Sale  of  Goods  Act,  declares  that  "goods  include  all  chattels 
personal  other  than  things  in  action  and  money.  The  term  in- 
cludes emblements,  industrial  growing  crops,  and  things  at- 
tached to  or  forming  part  of  the  land  which  are  agreed  to  be 
severed  before  sale  or  under  the  contract  of  sale."  ^*  This 
definition  would  settle  some  vexed  questions,  and  make  some 
changes  in  the  law  in  some  jurisdictions.^' 

Property. 

The  essence  of  a  sale  is  the  transfer  of  the  property  in  goods 
from  seller  to  buyer  for  a  price. ^°  The  transfer  must  be  of  the 
general  property  or  ownership,  as  distinguished  from  a  special 
property ;  ^^  for  the  general  property  may  be  in  one  person,  and 
a  special  property  in  another.  Thus,  in  the  case  of  a  pledge, 
the  pledgee  has  only  a  special  property,  and  the  general  prop- 
(.  rty  remains  in  the  pledgor,  who  can  transfer  the  general  prop- 
city  to  a  third  person,  subject  to  the  special  property  in  the 


«i  Post,  p.  74  et  seq.  »8  Post,  p.  72  et  suii. 

««  Post,  p.  77.  =1  Section  7G  (1). 

»•  Post,  p.  70,  uotc  r)5. 

«•  Chalmors,  Snlo  of  Hoods  Act  (6th  Ed.)  p.  I2r.. 

2T  Sales  Act.  §  7G  (1).  As  to  the  distinction  between  "the"  property 
(that  is.  tlie  general  property)  and  "a"  property  (that  is.  a  special 
proi»erty),  see  Purdif-k  v.  Sewell,  13  Q.  B.  Div.  159,  at  page  173,  and  10 
App.  Cas.  74,  at  page  93. 


6  FORMATION  OF  THE  CONTRACT.         (Ch.  1 

pledgee.^®  Again,  the  property  must  be  distinguished  from  the 
right  to  possession,  for  the  right  of  property  may  be  in  one 
person  and  the  right  to  possession  in  another,  as  where 
upon  a  sale  the  property  in  the  goods  passes  to  the  buyer,  but 
the  seller  retains  a  lien  for  the  price,  entitling  him  to  retain 
possession  of  the  goods  until  the  price  is  paid.^^ 


SALE    DISTINGUISHED    FROM    OTHER    TRANSACTIONS. 

5.  The  elements  ivhich  distingnisli  a  sale  from  otlier  trans- 
fers are  (1)  that  the  transfer  is  of  the  general  prop- 
erty, and  (2)  that  it  is  for  a  price.  If,  in  a  transfer, 
either  element  is  lacking,  the  transaction  is  not  a  sale. 

Where  General  Property  is  Not  Transferred — Bailment. 

A  bailment  is  "a  delivery  of  some  chattel  by  one  party  to 
another,  to  be  held  according  to  the  special  purpose  of  the  de- 
livery, and  to  be  returned  or  delivered  over  when  the  special 
purpose  is  accomplished."  ^°  In  a  bailment,  at  most,  only  a 
special  property  passes  to  the  bailee,  who  receives  possession  for 
a  special  purpose,  and  is  bound  to  return  the  goods, ^^  or  else, 
as  in  the  case  of  a  consignment  of  goods  to  a  factor  or  com- 
mission merchant  for  sale,  to  dispose  of  the  goods  according 
to  the  instructions  of  the  consignor  and  upon  sale  to  account 
for  the  proceeds. ^2  In  most  cases  the  test  of  bailment  is  wheth- 
er or  not  it  is  the  intention  of  the  parties  that  the  thing  received 
shall  be  returned.  If  the  identical  thing  is  to  be  returned,  al- 
though in  altered  form,  as  in  the  case  of  logs  to  be  made  into 
boards,  leather  into  shoes,  or  wheat  into  flour,  the  property  is 
not  transferred,  and  the  transaction  is  a  bailment ;  ^^  but  if  the 

2>»  Post,  p.  9.  2  0  Post,  p.  122  et  seq. 

8  0  Schouler,  Bailm.  {26.  Ed.)  §  2.     See  Hale,  Bailm.  1-9. 

31  See  cases  cited  notes  33,  34,    infra. 

82  Cf.  Ruthraufif  v.  Hagenbuc,  58  Pa.  103. 

3  3  Arnott  V.  Railway  Co.,  19  Kan.  95  (material  added  by  manu- 
facturer): Irons  V.  Kentner,  51  Iowa,  88,  50  N.  "W.  73,  33  Am.  Rep. 
119;  Gleason  v.  Beers,  59  Vt.  581,  10  Atl.  86,  59  Am.  Rep.  757;  Union 
Stockyards  &  Transit  Co.  v.  Cattle  Co.,  59  Fed.  49,  7  C.  0.  A.  660; 
Woodward  v.  Edmunds,  20  Utah,  118,  57  Pac.  848. 

Where  A.  delivered  leather  to  B.  to  be  made  into  boots,  which  B. 
was  to  consign  to  A.,  who  was  to  sell  them  on  a  commission  of  5  per 


§  5)       SALE  DISTINGUISHED  FROM  OTHER  TRANSACTIONS.  7 

identical  thing  is  not  to  be  returned,  and  the  receiver  may  de- 
Hver  some  other  thing  instead,  the  property  is  transferred,  and 
the  transaction  is  in  effect  a  sale,^*  or,  more  accurately,  an  ex- 
change.^'' 

Same — Grain  in  Elevator. 

A  difficult  case  arises  where  grain  is  deposited  in  an  elevator 
or  warehouse  upon  an  understanding,  express  or  implied,  that 
the  warehouseman  ma}-  mix  it  with  other  grain  of  his  own  or  of 
third  persons,  and  draw  from  the  mass  to  meet  the  orders  of  the 
depositors.^"  Some  cases  have  taken  the  view  that,  because 
the  identical  grain  was  not  to  be  returned,  the  property  in  it  is 
transferred,  and  tiiat  the  transaction  is  in  effect  a  sale.^^  Ac- 
cording to  the  prevailing  view,  however,  the  transaction  is  a 
bailment ;  the  different  depositors  owning  the  entire  mass  as 
tenants  in  common,  and  the  interest  of  each  in  the  mass,  as  it 
is  increased  or  diminished  by  additions  or  withdrawals  by  the 
warehouseman  and  other  depositors,  being  measured  by  the 
proportionate  amount  of  his  deposit.'*  The  deposit  may,  of 
course,  be  on  such  terms  as  to  effect  a  transfer  of  the  property, 

cent.  It  was  a  bailment  of  the  leather.  Schenck  v.  Snuiulera.  IH 
Gray  (Mass.)  37.  And  see  Hyde  v.  Cookson,  21  Barb.  (N.  Y.)  92.  But 
see  Jenkins  v.  Eichelberger,  4  Watts  (Pa.)  121.  28  Am.  Dec.  (>91 ; 
Prichott  V.  Cook,  G2  Pa.  193;    Butterlield  v.  Lathrop,  71  Pa.  22.5. 

3<  Slncor  Mfg.  Co.  v.  Elllncrton.  103  111.  App.  ."il7;  Scott  Mining  & 
Smelting  Co.  v.  Shultz.  07  Kan.  605,  73  Pac.  003;  Potter  v.  Mill  Co.. 
101  Mo.  App.  fiSl.  73  S.  W.  1005.  Cf.  Turnbow  v.  Beckstead,  25  Utah, 
4GS,  71  Pac.  10()2. 

36  Post,   p.   12. 

88  See  G  Am.  Law  Rev.  450. 

«T  Lawler  v.  Nichol,  12  Manitoba  R.  224.  See.  also,  South  Australia 
Ins.  Co.  V.  Randall.  L.  R.  3  P.  C.  App.  101;  Rahilly  v.  Wilson.  Fed. 
Cas.  No.  IL.^sTJ,  3  Dill.  (U.  S.)  420;  Chase  v.  Washburn.  1  Ohio  St. 
244,  59  Am.  Dec.  G23  (cf.  .Tames  v.  Plauk,  48  Ohio  St.  2.".5.  26  N.  E. 
1107). 

The  latter  cases  are  pcrliaps  distinguishable  on  the  ground  that  the 
warehouseman  had  the  right  to  sell  and  to  pay  In  money  or  grain. 
Post,  p.  8. 

3  8  Rice  V.  Nixon,  97  Ind.  97,  49  Am.  Rep.  430;  Drudge  v.  Letter.  IS 
Tnd.  App.  694,  49  N.  E.  34,  G3  Am.  St.  Rep.  3-59;  Ardinger  v.  Wright, 
:58  111.  App.  98;  Cushing  v.  Breed.  14  Alien  (Mass.)  370.  92  Am.  Dec. 
777;  Erwin  v.  Clark.  13  Mich.  10;  Y.iun-  v.  Miles,  20  Wis.  015.  23 
Wis.  CA3',  Bretz  v.  Dlehl,  117  Pa.  589.  11  Atl.  893,  2  Am.  St.  Rep.  700; 


8  FORMATION    OF   THE    CONTRACT.  (Ch.  1 

as  where  the  agreement  is  simply  that  the  warehouseman  shall 
pay  for  the  grain  at  the  market  price,  on  demand,^ ^  or  where 
he  receives  the  option  to  dispose  of  the  grain  at  his  pleasure 
and  to  pay  in  money,  instead  of  returning  grain  from  the 
mass.*"  On  the  other  hand,  the  transaction  may  be  a  bailment, 
notwithstanding  that  the  warehouseman  has  an  option  to  buy 
when  the  receipt  is  presented,  instead  of  returning  grain,  so 
long  as  it  is  contemplated  that  the  option  can  be  exercised  only 
when  the  receipt  is  presented,  and  not  that  he  may  treat  the 
grain  as  his  own  without  first  paying  for  it.*^ 

Same — Bailment  with  Option  to  Buy. 

A  sale  and  a  contract  to  sell  are  to  be  distinguished  from  a 
bailment  with  an  option  on  the  part  of  the  bailee  to  buy  the 
goods ;  for,  if  the  agreement  be  that  the  receiver  of  the  goods 
is  to  keep  or  have  the  use  of  them  for  a  certain  time,  and  that 
he  may  become  owner  upon  full  payment  of  the  rent  or  of  an 
agreed  sum,  the  transaction  is  not  a  sale,  because  it  is  not  the 
intention  that  the  property  shall  pass  until  the  payment  is 
made,*^  nor  is  it  a  contract  to  sell  because  the  receiver  is  not 

Nelson  v.  Brown,  53  Iowa,  555,  5  N.  W.  719;  Odell  v.  Leyda,  46  Ohio 
St.  244,  20  X.  E.  472;   McBee  v.  Oeasar,  15  Or.  62,  13  Pac.  652. 

In  some  states  it  is  declared  by  statute  that  the  transaction  is  a 
bailment.  Hall  v.  Pillsbury,  43  Minn.  33,  44  N.  W.  673,  7  L.  R.  A.  529, 
19  Am.  St.  Rep.  209;  State  v.  Cowdery,  79  Minn.  94,  81  N.  W.  750, 
48  L.  R.  A.  92.  And  see  Snydacker  v.  Stubblefield,  177  111.  506,  52  N. 
E.  742.     See  proposed  Warehouse  Receipts  Act,  §  23 ;  post,  note  172. 

3  0  Lyon  v.  Lenon,  106  Ind.  567,  7  N.  E.  311;  Woodward  v.  Boone, 
126  Ind.  122,  25  N.  E.  812;  Hagey  v.  Schroeder,  30  Ind.  App.  151, 
65  N.  E.  598;  Jones  v.  Kemp,  49  Mich.  9,  12  N.  W.  890;  Lonergan  v. 
Stewart,  55  111.  4:>;  Richardson  v.  Olmstead,  74  111.  213;  Weiland  v. 
Sunwall,  63  Minn.  320,  65  N.  W.  628;  Reherd's  Adm'r  v.  Clem,  86  Ya. 
374,  10  S.  E.  504;   State  v.  Stockman,  30  Or.  36,  46  Pac.  851. 

4  0  Lyon  v.  Lenon,  106  Ind.  567,  7  N.  E.  311;  Cloke  v.  Shafroth,  137 
111.  393,  27  N.  E.  702;  Barnes  v.  McCrea,  75  Iowa,  2G7,  39  N.  W.  392, 
9  Am.  St.  Rep.  473. 

41  Nelson  v.  Brown,  44  Iowa,  455;  Ledyard  v.  Hibbard,  48  Mich. 
421,  12  N.  W.  637,  42  Am.  Rop.  474 ;  State  v.  Rieger,  59  Minn.  151, 
60  N.  W.  1087. 

42  Rowe  V.  Sharp,  51  Pa.  26;  Enlow  v.  Klein,  79  Pa.  488;  Brown  v. 
Billington,  163  Pa.  76,  29  Atl.  904,  43  Am.  St.  Rep.  780;  Goss  Printing- 
Press  Co.  v.  Jordan,  171  Pa.  474,  32  Atl.  1031;  Sargent  v.  Gile,  8  N. 
H.  325;   Hart  v.  Carpenter,  24  Conn.  427;    Frye  v.  Burdick,  67  Me. 


§5)       SALE  DISTINGUISHED  FIIOM  OTIIKU  TIJANSACTIOXS.  9 

bound  to  buy.*'  Such  transactions  are  to  be  distin.q^uishcd  from 
so-called  "conditional  sales,"  where  there  is  a  contract  to  sell, 
accompanied  by  delivery  of  the  goods  to  the  buyer,  with  a  res- 
ervation of  the  property  in  the  goods  in  the  seller  to  secure  the 
payment  of  the  price,  which  the  buyer  is  bound  to  pay.** 

Same — Pledge. 

A  pledge  is  a  bailment  to  secure  the  payment  of  a  debt  or  the 
performance  of  an  engagement,*'*  and  the  general  property  re- 
mains in  the  pledgor,  who  can  transfer  the  general  property  to  a 
third  person,*"  subject  to  the  special  property  of  the  pledgee.*^ 
If  the  goods  are  delivered  by  way  of  security,  the  transaction  is 
a  pledge,  and  not  a  sale.***  A  debtor  may,  indeed,  transfer  the 
property  in  goods  to  his  creditors  in  payment  of  a  debt;  *"  but 
although  the  transaction  is  in  the  form  of  a  sale,  and  is  evi- 
denced by  a  written  instrument  or  transfer,  the  debtor  may 
show  that  the  transaction  was  intended  by  the  parties  as  a 
pledge."*" 

Sa)iie — Chattel  Mortgage. 

A  chattel  mortgage  differs  from  a  pledge  in  that  by  it  the 
general  property  in  the  mortgaged  goods  is  transferred  to  the 

408:  Braun  v.  Rendering  Co..  02  Wis.  24.').  CC,  N.  W.  inC;  Wl}:j,'lns  v. 
Tunilin.  OT.  Ga.  75r!.  2:i  S.  E.  7i5.  And  see  Orosby  v.  Canal  Co..  U'J  S. 
Y.  3.34.  2.3  N.  E.  7.30;  ante.  p.  2;  post.  p.  1.30. 

<8  iielby  V.  Matthews  (ISO.j)  App.  Cas.  471.  Of.  Lee  v.  Rutler  (1803) 
2  Q.  1'..  318. 

There  may  be  a  bailment  with  the  obtlffation  to  buy  If  a  comlitioii 
happens ;  for  example,  in  case  the  thing  be  damaged.  Blanchl  v. 
Nash.  1  Mees.  &  W.  545. 

**  I'ost,    p.    134. 

«oHale.  Bailm.  102. 

♦  oiialliday  v.  Holgate.  L.  R.  3  Exoh.  200;  Donald  v.  Snoklins.  L. 
R.  1  Q.  B.  585;  Harper  v.  Godsell,  L.  U.  5  Q.  B.  421;  Cortelyuu  v. 
Lansing.  2  Calnes,  Cas.  (N.  Y.)  2(X). 

<7  Franklin  v.  Neate.  13  Moos.  &  W.  481  ;  Jenkyns  v.  Brown,  14  Q. 
B.  40<>:    Whitaker  v.  Sumner,  20  Tick.  (Mass.)  300. 

■•8  Kimball  v.  Ilildrotb,  S  Allen  (Mass.)  1(57;  Ilouser  v.  Kemp.  3  I'a. 
208;  Beidler  V.  Crane  (111.)  19  N.  E.  714;  Irwin  v.  McDowell  K'aH 
34  rac.  708. 

■•o  Reeves  v.  Sobern.  10  Iowa.  234.  85  Am.  Doc.  513;  Travcrs  v. 
Leopold.  124  111.  431.  10  N.  E.  002. 

00  Walker  v.  Staples,  5  Allen  (Mass.)  34;   Newton  v.  Fay.  10  Allen 


10  FORMATION    OF   THE    CONTRACT.  (CIl.  1 

mortgagee.^*  It  differs  from  a  sale  in  that  the  transfer  is  de- 
feasible upon  performance  by  the  mortgagor  of  the  conditions 
of  the  mortgage.  ^^ 

Same — Agency  to  Sell. 

A  sale  is,  of  course,  to  be  distinguished  from  a  consignment 
or  delivery  of  goods  by  the  owner  to  a  factor  or  other  agent 
for  sale.  In  such  case  the  agent  receives  the  goods  as  the  goods 
of  his  principal,  who  retains  the  property  in  them,  and  in  deal- 
ing with  them  must  act  according  to  his  instructions,  and  is 
bound,  not  to  pay  a  price,  but  simply  to  account  for  the  pro- 
ceeds of  such  sale  as  he  may  make  on  his  principal's  behalf. ^^ 
Whether  a  contract  is  a  contract  of  sale  or  a  contract  of  agency 
is  a  question  of  substance,  and  not  of  form,  and  depends,  not 
upon  the  name  by  which  the  parties  choose  to  call  it,  but  upon 
its  real  meaning,  and  often  contracts  which  are  clothed  in  the 

(Mass.)  505;  Riley  v.  Bank,  164  Mass.  482,  41  N.  E.  679;  Jones  v, 
Rahilly,  16  Minn.  320  (Gil.  2S3);   Morgan  v.  Dod,  3  Colo.  551. 

81  Jones,  Chat.  Mortg.  §  4.  A  mere  lien,  under  which  the  property 
does  not  pass,  is  to  be  distinguished  from  a  chattel  mortgage.  Scofield 
V.  Elevator  Co.,  64  Minn,  527,  67  N.  W.  645. 

62  Jones,  Chat.  Mortg.  §  8;  Ex  parte  Hubbard,  17  Q.  B.  Div.,  at 
page  698;  In  re  Morritt,  18  Q.  B.  Div.,  at  page  232;  Jones  v.  Baldwin, 
12  Pick.  (Mass.)  316;    Parshall  v.  Eggart,  52  Barb.  (N.  Y.)  367. 

5  3  Sturm  V.  Boker,  150  U.  S.  312,  14  Sup.  Ct.  m,  37  L.  Ed.  1093; 
Metropolitan  Nat.  Bank  v.  Benedict  Co.,  74  Fed.  182,  20  C.  C.  A.  377; 
In  re  Columbus  Buggy  Co.,  143  Fed.  869,  74  C.  C.  A.  611;  Walker  v. 
Butterick,  105  Mass.  237;  St.  Paul  Harvester  Co.  v.  Nicolin,  36  Minn. 
232,  30  N.  W.  763;  Keystone  Watch  Case  Co.  v.  Bank,  194  Pa.  535, 
45  Atl.  328;  Lenz  v,  Harrison,  148  111.  598.  36  N.  E.  567;  Fleet  v. 
Hertz,  201  111.  .594,  66  N.  E.  858,  94  Am.  St.  Rep.  192;  Norton  v.  Me- 
lick,  97  Iowa,  564,  66  N.  W.  780;  Milburn  Mfg.  Co.  v.  Peak,  89  Tex. 
209,  34  S.  W.  102;  Holleman  v.  Fertilizer  Co.,  106  Ga.  156,  32  S.  B. 
83;  Commonwealth  v.  Parlin  &  Orendorff  Co.,  118  Ky.  168,  80  S.  W. 
791. 

Where  the  owner  of  a  cheese  factory  agreed  with  dairymen  to  man- 
ufacture their  milk  into  butter  and  cheese  at  a  certain  rate  per  pound, 
he  to  sell  the  product  and  pay  them  the  proceeds,  less  his  compensa- 
tion, in  proportion  to  the  amount  of  milk  furnished  by  each,  the  trans- 
action was  not  a  sale  of  the  milk  to  him,  but  he  was  simply  their 
agent.  First  Nat.  Bank  v.  Sohween,  127  III.  573,  20  N.  B.  681,  11 
Am.  St.  Rep.  174.  See,  also,  Sattler  v.  Hallock,  100  N.  Y.  291,  54  N. 
E.  667,  46  L.  R.  A.  679,  73  Am.  St  Rep.  680. 


§  6)       8ALK  DISTINGUISH KD  FROM  OTHKK  TUANSACTIONS.  11 

language  of,  or  are  described  by  the  parties  as,  contracts  of 
agency,  are  in  legal  effect  contracts  of  sale,''*  and,  on  the  other 
hand,  contracts  w  liich  use  the  language  of  sale  are  often  in  legal 
effect  contracts  of  agency/" 

Same — Agency  to  Buy. 

If  a  person  is  employed  to  buy  goods  on  behalf  of  another, 
the  relation  is,  of  course,  that  of  principal  and  agent."  But, 
if  it  is  the  intention  that  the  one  is  to  buy  on  his  own  behalf 
and  to  sell  the  goods  to  the  other,  the  transaction  is  a  contract 
to  sell.'*' 


B«  lleury  Bill  Pub.  Co.  v.  Durgiu,  101  Mich.  458,  59  N.  W.  812; 
Mack  V.  Tobacco  Co.,  48  Neb.  3'J7,  G7  N.  W.  174,  58  Am.  St.  Rep.  6»1; 
Chi.ki'dng  v.  Pa-stress,  130  III.  20G,  22  N.  E.  542,  17  Am.  St.  Rep.  309, 
Peoria  Mfg.  Co.  v.  Lyons.  153  111.  427,  38  N.  E.  GGl;  Norwegian  Plow 
Co.  V.  Clark,  102  Iowa.  31,  70  N.  W.  808:  Alpha  Clieck-ltower  Co.  v. 
Bradley,  105  Iowa,  537,  75  N.  W.  300;  Butterick  Pub.  Cn.  v.  Bailey. 
75  Iowa,  ISO,  75  N.  W.  180 ;  Weston  v.  Brown,  158  N.  Y.  3tX),  53  N. 
R  3G;  Roosevelt  v.  Nusbaum,  75  App.  Dlv.  117,  77  N.  Y.  Supp.  457; 
Sutton  V.  Baker,  91  Minn.  12,  97  N.  W.  420;  Arbuckle  v.  Klrkpatrlck, 
98  Tenn.  221.  39  S.  W.  3.  3G  L.  R.  A.  285,  CO  Am.  St.  Rep.  854;  Ar- 
buckle V.  Gates,  95  Va,  802.  30  S.  E.  406;  Howell  v.  Boudar,  95  Va. 
815.  ?A)  S.  B.  1007. 

Where  goods  are  consigned  on  such  terms  that  the  consignee  Is 
at  liberty  to  sell  on  such  terms  as  he  sees  fit,  but  must  in  such  case 
pay  the  consignor  at  fixed  prices,  until  a  sale  is  made  the  property 
remains  in  the  consignor,  but  when  he  sells  the  property  passes  to 
him,  and  he  sells  on  his  own  account,  and  not  as  agent  Ex  parte 
White.  L.  R.  6  Ch.  App.  307;  In  re  Nevill.  Id.;  Nutter  v.  Wheeler,  2 
Low.  (U.  S.)  346,  Fed.  Cas.  No.  10.3S4;  Gindre  v.  Kean.  28  N.  Y. 
Supp.  4.  7  Misc.  Rep.  582;  ^tna  Powder  Co.  v.  Hlldebrand,  137  Ind. 
462,  37  N.  E.  136,  45  Am.  St.  Rep.  104;  Vermont  Marble  Co.  v.  Brow. 
109  Cal.  236,  41  Pac.  1031;  50  Am.  St.  Rep.  37.  Cf.  Harris  v.  Coe, 
71  Conn.  1.57,  41  Atl.  .5.52. 

B5  Eldridgc  v.  Benson,  7  Cush.  (Mass.)  4S3;  Atlas  Glass  Co.  v. 
Manufacturing  Co.  (C.  C.)  87  Fed.  41S. 

00  Whitney  v.  Beckforth,  105  Mass.  267;  National  School  Furnish- 
ing Co.  V.  Cole.  ."lO  III.  App.  156:  Hatch  v.  McBrlen,  S3  Mich.  150,  47 
N.  W.  214;  Keswick  v.  Rafter.  35  App.  Dlv.  50S,  .54  N.  Y.  Supp.  850, 
affirmod  165  N.  Y.  053.  59  N.  E.  1124. 

6T  Black  V.  Webb.  20  Ohio.  304,  .55  Am.  Dec.  456.  See.  also.  Moors 
V.  Kidder.  106  N.  Y.  32,  12  N.  E.  SIS;  Baring  v.  Galpin.  57  Conn.  352, 
18  Atl.  2G6.  5  L.  R.  A.  300. 


12  FORMATION  OF  THE  CONTRACT.  (Ch.  1 

Where  Transfer  is  Not  for  a  Price — Gift. 

If  the  transfer  of  the  property  in  goods  is  without  considera- 
tion, the  transaction  is  a  gift.  A  gift  differs  from  a  sale,  also, 
in  that  delivery  is  essential  to  effect  a  gift.°* 

Same — BxcJiange. 

If  the  consideration  for  the  transfer  of  the  property  in  goods 
consists  of  other  goods,  no  price  being  fixed  for  either,  the 
transaction  is  an  exchange  or  barter.^^  The  legal  effect  of  a 
contract  of  exchange  is,  however,  generally  the  same  as  that  of 
a  contract  of  sale.®"  The  principal  difference  is  in  respect  to 
the  form  of  pleading  and  the  measure  of  damages,  since  in  the 
case  of  an  exchange  the  declaration  must  be  for  damages  for 
the  breach  of  the  special  contract,  and  not  in  assumpsit  for 
goods  sold,  or  goods  sold  and  delivered.®^  And  authority  to 
sell  does  not  confer  authority  to  exchange.^-  The  distinction 
may  also  be  material  in  interpreting  a  statute  which  refers  in 
terms  to  sales.*^  A  contract  of  exchange  is  held  to  be  a  con- 
es Noble  V.  Smith,  2  Johns.  (N.  Y.)  52,  3  Am.  Dec.  399;  Grover  v. 
Grover,  24  Pick.  (Mass.)  261,  35  Am.  Dec.  319;  Cochrane  v.  Moore,  25 
Q.  B.  Div.  57. 

59  Harrison  v.  Luke,  14  Mees.  &  W.  139;  Read  v.  Hutchinson,  3 
Camp.  352;  Williamson  v.  Berry.  8  How.  (U.  S.)  495,  544,  12  L.  Ed. 
1170;  Mitchell  v.  Gile,  12  N.  H.  390;  Fuller  v.  Duren,  36  Ala.  73,  76 
Am.  Dec.  31S;  Dowling  v.  McKenney,  124  Mass.  480. 

Sales  Act,  §  9  (2),  abolishes  the  distinction  between  sale  and  barter. 
Cf.  section  9  (3). 

Where  a  note  is  taken  in  conditional  payment,  the  transaction  is 
a  sale,  and  not  an  exchange.  Sebastian  May  Co.  v.  Codd,  77  Md.  293, 
26  Atl.  316. 

GO  Com.  V.  Clark,  14  Gray  (Mass.)  367,  per  Bigelow,  J.,  372.  See 
Kraanuel  v.  Dane,  3  Camp.  299  (warranty) ;  La  Neuville  v,  Nourse,  Id. 
:!51  (caveat  emptor) ;  First  Nat.  Bank  v.  Reno,  73  Iowa,  145,  34  N.  W, 
796. 

61  Harris  v.  Fowle,  cited  in  Barbe  v.  Parker,  1  H.  Bl.  287;  Mitchell 
V.  Gile,  12  N.  H.  .390;  Yail  v.  Strong,  10  Vt.  457;  Herrick  v.  Carter, 
56  Barb.  (N.  Y.)  41;  Slayton  v.  McDonald,  73  Me.  50.  Otherwise 
where  the  contract  of  exchange  is  for  goods  at  a  stipulated  price, 
Forsyth  v.  Jervis,  1  Starkie.  437;  Hands  v.  Burton,  9  East,  349;  Har- 
rison V.  Luke,  14  Mees.  &  W.  139;  Way  v.  Wakefield,  7  Yt  228;  Pic- 
ard  V.  McCorraick,  11  Mich.  69 ;  or  where  the  exchange  is  only  partly 
for  goods,  and  the  action  is  to  recover  the  money  balance  after  de- 
livery of  the  goods,  Sheldon  v.  Cox,  3  Barn.  &  C.  420. 

C2  See  Tiffany,  Ag.  pp.  207,  223. 

6  3  Proof  of  barter  does  not  support  an  indictment  charging  sale  of 


§§  6-7  CArAC'ITY    OF    PARTIKS.  13 

tract  of  sale  within  the  statute  of  frauds."*  And  in  cases  where 
goods  are  delivered,  and  the  receiver  is  to  deliver  other  goods 
in  return,  so  that  the  property  passes,  the  courts  generally  de- 
scribe the  transaction  as  a  sale."' 

Contract  for  Work-,  Labor,  and  Materials. 

A  distinction  is  sometimes  drawn  between  a  contract  to  sell 
goods  and  a  contract  for  work,  labor,  and  materials.  The  dis- 
tinction is  chiefly  important  in  determining  whether  the  contract 
is  one  "for  the  sale  of  goods"  within  the  statute  of  frauds,  and 
for  determining  this  question  difTercnt  rules  prevail  in  difTerent 
jurisdictions,  which  will  be  considered  hereafter.'"  The  ques- 
tion may  be  otherwise  material,®^  however;  for  example,  as 
affecting  the  form  of  pleading  and  the  measure  of  damages," 
or  the  time  when  the  property  passes."* 

CAPACITY    OF    PARTIES. 

6.  IN   GENERAL.     Capacity   to   buy   and   sell    Is    reRnlatod   by 

the  Kcneral  la\F  concerninK  capacity  to  contract,  and 
to  transfer  and  acquire  property. 

7.  NECESSARIES.     Where  necessaries  arc  sold  and  delivered 

to  an  infant,  or  to  a  person  xi^ho  by  reason  of  mental 
incapacity  or  drunkenness  is  incompetent  to  contract, 
he  must  pay  a  reasonable  price  therefor.  Necessaries 
mean  p;oods  suitable  to  the  condition  in  life  of  such  in- 
fant or  other  person,  and  to  his  actxial  requirements 
at  the  time  of  delivery. to 

liquor.     Stevenson  v.  State.  Go  Iiul.  400;   Mafwey  v.  Stnte,  74  Ind.  ^GS. 

A  sale  is  not  within  the  menniiiff  of  a  statute  declaring  illegal  the 
sale  of  a  slave  by  a  trader  without  a  license.  Gunter  v.  IvCchcy,  IV) 
-Via.  r>9G. 

But  in  Massachusetts  an  exchange  has  been  held  to  be  a  sale  within 
the  meaning  of  a  statute  prohibiting  the  sale  of  liquor.  Howard  v. 
IlarriH,  S  Allen  (Mass.)  2U7;  Com.  v.  Clark,  14  Gray  (Mass.)  307. 

«*  Tost.    p.    71. 

«f'  Ante.  p.  6. 

««  Post,    p.    G2. 

«7  See  Wyllle  v.  Palmer.  l.?7  N.  Y.  24S,  n.*^  N.  E.  HSl.  10  L.  R.  A.  2.Vi. 

«8  Garvin  Mach.  Co.  v.  Hutcbin.son.  1  App.  Dlv.  3S0.  37  .\.  Y.  Supp. 
3J)4. 

«»  C^-ntral  Lith.  &  Eng.  Co.  v.  Moore,  ir,  Wi.<?.  170.  43  N.  W.  11121.  fl 
L.  R.  A.  788.  17  Am.  St.  Hop.  l.SG;  r:iirl.;inl;s  v.  Drug  Co..  41'  Mo. 
App.  2G2:    i.ost,  p.  34S. 

»•  These  two  sections  follow  Sales  Act.  5  2. 


14  FORMATION  OF  THE  CONTRACT,  (Ch.  1 

The  capacity  of  persons  to  buy  and  sell  is  generally  de- 
termined by  their  capacity  to  contract,  upon  which  subject  the 
reader  is  referred  to  works  upon  contract.  "Capacity  to  con- 
tract must  be  distinguished  from  authority  to  contract.  Capac- 
ity means  power  to  bind  oneself;  authority  means  power  to 
bind  another.  *  *  *  Capacity  is  usually  a  question  of  law ; 
authority  is  usually  a  question  of  fact.  As  regards  authority 
to  buy  and  sell  on  behalf  of  another,  there  appears  to  be  noth- 
ing peculiar  in  the  law  of  sales,  except  the  provisions  of  the 
factors'  acts."  '^^  On  the  subject  of  authority,  therefore,  the 
reader  is  referred  to  works  on  the  law  of  agency  and  partner- 
ship.'^^ There  are,  however,  certain  classes  of  persons,  in  part 
incapable  of  contracting,  who,  under  special  circumstances,  may 
become  liable  for  goods  sold  and  delivered  to  them.  The  per- 
sons embraced  in  this  exception  are  infants,  lunatics,  and  intox- 
icated persons. 

The  obligation  of  such  persons  to  pay  for  necessaries  fur- 
nished to  them  is,  however,  quasi  contractual,  rather  than 
contractual,^^  as  is  shown  by  the  fact  that  it  is  generally  held 
that  they  are  liable  to  pay,  not  the  price,  but  their  reasonable 
valued* 

CAPACITY    OF   INFANTS. 

8.  Contracts  of  sale  and  purchase  by  an  infant  are  voidable, 
at  bis  option,  either  before  or  after  he  has  attained 
his  majority.  The  contract  ceases  to  be  voidable  if  it 
be  ratified  npon  the  attainment  of  his  majority. 

The  general  rule  of  the  common  law  is  that  an  infant's  con- 
tract is  voidable,  at  his  option,  either  before  or  after  he  has  at- 
tained his  majority.''^    Thus  an  infant  may  maintain  an  action 

Ti  Chalm.  Sale  of  Goods  Act  (Cth  Ed.)  11. 

7  2  See  Sales  Act,  §  73. 

73  In  re  Rhodes,  44  Ch.  Div.  94;    Clark,  Cont.  (2d  Ed.)  155,  Ml. 

7  4  Post,    p.   21. 

7  6  Gibbs  V.  Merrill,  3  Taunt.  307;  Hunt  v.  Massey,  5  Bam.  &  Adol. 
902;  Holt  V.  Clarencieux,  2  Strange,  938;  Zouch  v.  Parsons,  3  Bur- 
rows, 1794;  King  v.  Inhabitants  of  Chillesford,  4  Barn.  &  C.,  at  page 
100;  Tucker  v.  Moreland,  10  Pet.  (U.  S.)  64,  9  L.  Ed.  345.  See  Pol. 
Cont  52  et  seq.    Emancipation  bj-  his  father  does  not  enlarge  the  in- 


§  8)  CAPACITY   OF   INFANTS.  15 

on  the  contract  against  the  seller  during  infancy.'"  He  may  buy 
and  sell,  but  either  sale ''"'  or  purchase  ^'  may  be  avoided  by 
him,  and  if  he  avoids  either  he  may  recover  back  the  considera- 
tion."" In  case  of  avoidance  he  must,  however,  return  the 
consideration  which  he  received,  if  he  still  has  it;  though  if 
he  has  consumed,  lost,  or  sold  it  during  minority,  he  may  never- 
theless avoid  the  purchase  or  sale.*"  Such  at  least  is  the  law 
generally  recognized  in  America,'^  though  in  England  his  right 

fant's  liability.  Mason  v.  Wright,  13  Mete.  (Mass.)  3uG.  See  Clark, 
Cont.  (2(1  Ed.)  144. 

T6  Warwick  v.  Bruce,  2  Maule  &  S.  205;  Holt  v.  Clareucleux,  2 
Strange.  937. 

7  7  Shipnian  v.  Ilorton.  17  Conn.  4S1;  Stafford  v.  Roof,  9  Cow.  (N. 
Y.)  62C.;  Carr  v.  Clough.  2G  N.  H.  280,  59  Am.  Dec.  345;  Towle  v. 
Dresser.  73  Me.  252;  Bloomingdale  v.  Chittenden,  74  Mich.  698,  42 
N.  W.  IGG. 

7  8  Riley  V.  Mallory,  33  Conn.  201;  Price  v.  Furman,  27  Vt  208.  66 
Am.  Dec.  104;  Whltcomb  v.  Joslyn.  51  Vt  79,  31  Am.  Rep.  678; 
Chandler  v.  Simmons,  97  Mass.  ."".ns.  93  Am.  Dec.  117;  M<rarthy  v. 
Henderson.  138  Mass.  310:  Robinson  v.  Weeks.  56  Me.  102;  House  v. 
Ale.\auder,  105  Ind.  109.  4  N.  E.  891.  55  Am.  Rep.  189;  Lemmon  v. 
Beeman,  45  Ohio  St  505,  15  N.  E.  470. 

7»  Cases  cited  supra,  notes  77,  78. 

«o  Price  V.  Furman.  27  Vt  208.  65  Am.  Deo.  101 ;  Whltroriib  v.  Jos- 
lyn. 51  Vt  79,  31  Am.  Kop.  678;  Chandler  v.  Simmons,  97  Mass.  .'08, 
93  Am.  Dec.  117;  Walsh  v.  Young,  110  Mass.  396;  Morse  v.  Ely,  154 
Mass.  458.  28  N.  E.  577.  26  Am.  St.  Rep.  263;  Groen  v.  Cr^en.  «S> 
N.  Y.  553,  25  Am.  Rop.  233;  Orpenter  v.  Carpenter,  45  Iiid.  142; 
Shirk  V.  Shultz.  113  Ind.  571,  15  N.  B.  12;  Eureka  Co.  v.  Edwards. 
71  Ala.  248,  46  Am.  Rop.  314;  Brantley  v.  Wolf,  60  Miss.  120;  Lem- 
mon V.  Beomnn.  45  Ohio  St  .505.  15  N.  E.  476;  MacGroal  v.  Taylor. 
167  U.  S.  <;s,<;,  17  Sup.  Ct.  961,  42  L.  Ed.  326;  Englebert  v.  Troxoll.  40 
Neb.  195.  58  N.  W.  852.  26  L,  R.  A.  177.  42  Am.  St  Rep.  6<;5;  Uld;:e- 
way  V.  Herbert  150  Mo.  r>06.  51  S.  W.  10-10.  73  Am.  St.  Rep.  4t>l ; 
White  V.  Cotton-Waste  Corp..  178  Mass.  20.  59  N.  E.  642;  Glllls  v. 
Goodwin.  180  Mass.  140.  61  N.  E.  813,  01  Am.  St  Rop.  265. 

Whore  an  infant  bought  of  another  infant  and  paid  the  price,  and 
after  the  seller  had  spent  the  money  the  buyer  disafflrniofl  the  con- 
tract and  brought  an  action  to  recover  the  money  paid,  l>oth  in  con- 
tract and  tort.  It  was  held  that  the  defendant's  plea  of  infancy  was 
a  defense  to  the  count  In  contraot  and  there  was  no  dealing  with 
the  money  by  the  defendant  which  could  constitute  a  ct)nvor8ion. 
Drude  v.  Curtis,  183  Mass.  317.  67  N.  E.  317.  62  L.  R.  A.  755. 

81  The  decisions  on  this  point,  however,  are  not  uniform.  See 
Heath  v.  Stevens.  4*^  N.  H.  251.  where  it  is  hold  that  the  Infant's 


16  FORMATION   OF  THE  CONTRACT.  (Ch.  1 

to  avoid  an  executed  sale  and  recover  back  the  price  is  de- 
nied.^- 

Ratification. 

The  contract  of  an  infant  ceases  to  be  voidable  if  it  be  rati- 
fied by  him  after  attaining  his  majority.^^     By  statute  in  some 


right  to  avoid  the  contract  is  conditional  on  liis  restoring  what  he 
received  in  specie,  or,  if  not,  on  his  accounting  for  the  value  of  it. 
See,  also.  Hall  v.  Butterfield,  59  N.  H.  354,  47  Am.  Rep.  209;  Bart- 
lett  V.  Bailey,  59  N.  H.  408;  Riley  v.  Mallory,  33  Conn.  201;  Adams 
V.  Beall,  07  Md.  53,  8  Atl.  064.  1  Am.  St.  Rep.  379;  Stack  v.  Cav- 
enaugh,  07  N.  H.  149,  30  Atl.  350. 

Where  the  personal  contract  of  an  infant  is  fair  and  reasonable, 
and  free  from  fraud  or  undue  influence,  and  has  been  wholly  or 
partly  performed  on  both  sides,  so  that  the  infant  has  enjoyed  the 
benefits  of  it,  but  has  parted  with  what  he  has  received,  or  the 
benefits  are  of  such  a  nature  that  he  cannot  restore  them,  he  cannot 
recover  back  what  he  has  paid.  Johnson  v.  Insurance  C!o.,  56  Minn. 
365,  57  X.  W.  934;  Alt  v.  Graff,  05  Minn.  191,  68  N.  W.  9. 

Where  an  infant  who  had  pm'chased  a  bicycle  on  installments,  and 
paid  part  of  the  price,  under  an  agreement  that  title  should  not 
pass  from  the  seller  until  all  installments  were  paid,  afterwards 
disaffirn'.ed  the  contract,  she  was  not  entitled  to  recover  the  install- 
ments paid,  since  as  to  them  the  contract  was  executed,  though 
the  contract  in  its  entirety  was  executory.  Rice  v.  Butler,  160  N. 
Y.  578,  55  N.  E.  275,  47  L..  R.  A.  303,  73  Am.  St.  Rep.  680.  Cf. 
Gillis  V.  Goodwin,  180  Mass.  140,  61  N.  E.  813,  91  Am.  St.  Rep.  265; 
Clark,  Cont.  (2d  Ed.)  171. 

S2  "If  an  infant  pays  money  under  a  contract,  in  consideration  of 
which  it  is  wholly  or  partly  performed  by  the  other  party,  he  can  ac- 
quire no  right  to  recover  the  money  back  by  rescinding  when  he 
comes  of  age."  Pol.  Cont.  60;  Leake,  Cont.  553.  The  authorities 
principally  relied  on  are  Holmes  v.  Blogg,  8  Taunt.  508,  which  is 
generally  repudiated  by  the  American  cases  above  cited,  and  .Ex 
parte  Taylor,  8  De  Gex,  M.  &  G.  258.  See,  also,  Williams  v.  Pas- 
quali,  Peake,  Add.  Cas.  197,  per  Kenyon,  C.  J.;  Valentini  v.  Canali, 
24  Q.  B.  Div.  166.  In  Ex  parte  Taylor,  Eord  Justice  Turner  said: 
"If  an  infant  buys  an  article  which  is  not  a  necessary,  he  cannot 
be  compelled  to  pay  for  it;  but  if  he  does  pay  for  it  during  his 
minority  he  cannot,  on  attaining  his  majority,  recover  the  money 
back." 

By  the  Infants'  relief  act  of  1874  (St.  37  &  38  Vict.  c.  62)  con- 
tracts entered  into  by  infants  supplied  or  to  be  supplied,  other  than 
for  necessaries,  are  void.     Benj.  Sales  (7th  Am.  Ed.)  §  28. 

88  Williams  v.  Moor,  11  Mees.  &  W.  256;  Anson,  ConL  105;  Clark. 
Cont.  (2d  Ed.)  160. 


§  8)  CAPACITV    OF    INFANTS.  17 

States  the  ratification  is  rctiuirccl  to  be  in  writing;;  '*  but  in  nio>t 
states  no  writing  is  necessary,  and  the  ratification  may  be  either 
by  express  lanj^iaijc  aniountint^  to  a  new  ]ironiise,  as  dis- 
tinguished from  a  mere  acknowledgment  of  tlie  debt.*"  or  by 
conduct,  as  by  using  or  scUing  the  thing  sold.*"  Mere  silence 
or  failure  to  disaffirm  docs  not  constitute  ratification.^'' 

Contract  for  Necessaries. 

An  infant  may  procure  necessaries,  and  be  held  liable  for 
their  reasonable  value.* ^  The  necessaries  of  an  infant  are 
stated  in  Co.  Litt.  17:^,  to  be  "his  necessary  meat,  drinkc.  appar- 
el, necessary  physicke,  and  such  other  necessaries,  and  likewise 
for  his  good  teaching  or  instruction,  whereby  he  may  profit 
himself  aftenvards."  Rut  the  term  includes  also  articles  pur- 
chased for  real  use.  although  ornamental,  as  distinguished  from 
such  as  are  merely  ornamental ;  '^'•*  and  it  has  been  said  "that  art- 
icles of  mere  luxury  arc  always  excluded,  though  articles  of  lux- 

8*  Clark.  Cont.  (2d  Kd.)  HUi.  I'revious  to  the  iufants'  relief  act 
of  1S74  (St.  .37  &  .".S  Vict.  c.  02),  hy  which  radical  changes  are  made 
in  the  law  governing  contracts  by  infants,  a  writing  was  reciuired 
in  England.     Se<^  I'.eiij.  Sales  (7th  Am.  Ed.)  §  27  et  seq. 

85  Ford  V.  Phillips.  1  Pick.  (Mass.)  202;  Thompson  v.  Lay.  4  Pick. 
(.Afas-s.)  48,  IG  Am.  Dec.  32.j;  Proctor  v.  Sears.  4  Allen  (Mass.)  95; 
Wilcox  V.  Roath,  12  Conn.  5.50;  Catlin  v.  Iladdox,  4'.»  Conn.  492, 
44  Am.  Rep.  249;    Clark,  Cont.  (2d  Ed.)  167. 

8c  Boyden  v.  IJoyden.  9  Mole.  (Mas.s.)  .">19;  I^awson  v.  I.ovejoy.  8 
(Ireenl.  (Me.)  403,  2.']  Am.  Dec.  .52(5;  Roody  v.  McKeiiney.  2:j  Me.  ."17; 
Deason  v.  Boyd.  1  Dana  (Ky.)  4."»;  Rohin.son  v.  Iloskins,  14  Bush. 
(Ky.)  393;  Cheshire  v.  Barrett.  4  McC<ird  (S.  C.)  241.  17  Am.  Dec. 
735;  Minock  v.  Shortridge,  21  Mich.  .'iOl;  Philiwt  v.  Manufacturing 
Co.,  18  Neb.  .54.  24  N.  AV.  42S;  Eangdon  v.  Ciayson,  75  Mich.  201, 
42  N.  W.  805;  Hilton  v.  Sheplierd,  92  Me.  100,  42  Atl.  3S7:  Clark, 
Cont.  (2d  Ed.)  108. 

8'  Smith  V.  Kelley.  13  Mete.  (Mass.)  'MY.);  New  Hampshire  Mu(. 
Fire  Ins.  Co.  v.  Noyes,  .32  N.  H.  .345;  Durfee  v.  Ablnttt.  01  Mi.h. 
471.  28  N.  W.  521;  Tyler  v.  Gallnp's  Estate.  08  Mich.  185.  35  N.  \V. 
902,  13  Am.  St.  Rep.  3.30;    Clark.  Cont.  (2d  Ed.)   Hk8. 

88  It  has  sometimes  been  laid  down,  in  general  terms,  that,  if  an 
agreement  be  for  the  benelit  of  the  infant,  it  is  binding.  See  Pol. 
Cont  GG;  Clark,  Cont.  (2d  I'>1.)  1.50.  In  America  the  exception  is 
confined  to  necessaries.  But  see  Hall  v.  Butteriield,  59  N.  II.  ."i.54, 
47  Am.  Rep.  209;   Bartlett  v.  Bailey.  .59  N.  H.  408. 

8»  Peters  V.  Fleming,  G  Mees.  &;  \V.  42;  Ryder  v.  Wombwell,  L. 
R.  3  Exch.  90. 

Tiff.Sales(2d  Ed.)— 2 


18  FORMATION  OF  THE  CONTRACT.  (Ch.  1 

urious  utility  are  in  some  cases  allowed."  ^°  The  word  "necessa- 
ries" must,  therefore,  be  regarded  as  a  relative  term,  to  be  con- 
strued with  reference  to  the  infant's  age,  state,  and  condition. ^^ 
An  infant,  being  considered  in  law  as  devoid  of  sufficient  dis- 

9  0  Chappie  v.  Cooper,  13  Mees.  &  W.  256,  per  Alderson,  B. 

81  reters  v.  Fleming,  6  Mees.  &  W.  46;  Wharton  v.  Mackenzie,  5 
Q.  B.  G06;  Davis  v.  Caldwell,  12  Cush.  (Mass.)  513;  Tyler,  Inf.  (2d 
Ed.)  §  69  et  seq.  An  enumeration  of  the  various  things  which  have 
been  decided  to  be  necessary  or  not  necessary  would  be  of  com- 
paratively little  value,  since  the  question,  though  to  a  great  extent 
for  the  court,  is  one  of  .iudicial  common  sense  in  each  particular 
case.  The  subjoined  cases  are  cited  for  illustration.  The  follow- 
ing articles  have  been  held  not  to  be  necessaries:  A  silver  goblet 
for  a  gift.  Ryder  v.  Wombwell,  L.  R.  3  Exch.  90.  L.  R.  4  Exch.  32. 
A  collegiate  education,  in  the  absence  of  special  circumstances.  Mid- 
dlelniry  College  v.  Chandler,  16  Yt.  686.  42  Am.  Dec.  537.  Traveling 
expenses  for  pleasure.  McKanna  v.  Merry,  61  111.  177.  A  bicycle 
used  in  going  home  from  the  infant's  place  of  work  to  dinner.  Pyiie 
V.  Wood,  145  Mass.  558,  14  N.  E.  775.  It  has  been  decided  that  the 
following  things  might  be  necessaries:  A  livei'y  for  a  servant. 
Hands  v.  Slaney,  8  Term  R.  578.  A  regimental  uniform  for  a  mem- 
ber of  a  volunteer  corps.  Coates  v.  Wilson.  5  Esp.  152.  A  horse, 
when  required  by  the  infant's  position  or  health.  Hart  v.  Prater,  1 
Jur.  623;  but  not  generally,  Smithpeters  v.  Griffin,  10  B.  Mon.  (Ky.) 
259;  Beeler  v.  Young,  1  Bibb.  (Ky.)  519;  Harrison  v.  Fane,  1  Man. 
&  G.  550;  House  v.  Alexander.  105  Ind.  109.  4  N.  E.  891,  55  Am. 
Rep.  189;  IMiller  v.  Smith,  26  Minn.  248,  2  N.  W.  942,  37  Am.  Rep. 
407.  A  watch  and  jewelry,  relatively  to  the  infant's  position.  Pe- 
ters V.  Fleming,  6  ^Mees.  &  W.  40.  See  Berolles  v.  Ramsay,  Holt, 
N.  P.  77.  A  wedding  suit.  Sams  v.  Stockton,  14  B.  Mon.  (Ky.)  232. 
A  lawsuit.  Thrall  v.  Wright,  38  Vt.  494.  Attorney's  fees  for  de- 
fense in  a  bastardy  process,  Barker  v.  Hibbard,  54  N.  H.  539,  20  Am. 
Rep.  160;  or  in  prosecuting  an  action  for  seduction,  Muuson  v. 
Washband,  31  Conn.  303,  S3  Am.  Dec.  151;  or  in  prosecuting  or  de- 
fending criminal  prosecution.  Askey  v.  Williams.  74  Tex.  294,  11 
S.  W.  1101,  5  L.  R.  A.  176;  Crafts  v.  Carr,  24  R.  I.  397,  53  Atl.  275, 
60  L.  R.  A.  128,  96  Am.  St.  Rep.  721;  or  in  litigation  relative  to  the 
infant's  property,  Epperson  v.  Nugent,  57  Miss.  45,  34  Am.  Rep. 
4.34  (Phelps  v.  Worcester,  11  N.  II.  51,  contra).  It  has  been  decided 
that  the  following  things  were  not  necessaries:  Dinners  supplied 
to  an  undergraduate  at  his  rooms,  in  the  absence  of  special  circum- 
stances. Brooker  v.  Scott,  11  Mees.  &  W.  67;  Wharton  v.  Mackenzie, 
5  Q.  B.  606.  Cigars  and  tobacco,  prima  facie.  Bryant  v.  Richardson, 
L.  R.  3  Exch.  93,  note  3,  14  Law  T.  (N.  S.)  24.  Repairs  on  dwelling 
house  needed  to  prevent  serious  injury.  Phillips  v.  Lloyd,  18  R.  I. 
90,  25  Atl.  909. 


§  8)  CAPACITY   OF   INFANTS.  ID 

crction  to  carry  on  a  trade  or  business,  is  not  liable  for  puo«ls 
supplied  to  him  for  bis  trade  or  business,  whether  he  is  trading- 
alone  or  in  partncrsiiip."-  I5ut.  if  married,  his  duties  as  hus- 
band and  father  arc  the  same  as  if  he  were  of  full  age,  and 
things  necessary  for  his  wife  and  children  arc  deemed  neces- 
saries for  himself."^ 

It  is  obvious  that  an  article  such  as  a  diamond  or  a  race  horse 
may  be  intrinsically  incapable  of  being  a  necessary,  ami  that  an- 
other article,  though  not  intrinsically  incapable  of  being  a  nec- 
essary, may  fail  of  being  such  by  reason  of  the  circumstances 
of  the  case  ;  for  example,  the  age  or  condition  of  the  infant,  the 
quantity  in  which  it  is  supplied,"*  or  the  fact  that  his  wants 
are  suitably  supplied  by  his  parent  or  guardian,  or  from  any  oth- 
er source." °     The  principal  difficulty  in  respect  to  necessaries 

02  Whywall  v.  Chanipion.  2  Stnin.c«>.  1083:  Dilk  v.  KeiKliIoy.  2  Ksp. 
480;  Moriiam  v.  Cunninchain.  11  Cusli.  (Mass.)  40;  Mason  v.  Wright, 
13  Mete.  (Mass.)  30(5;  Kainwater  v.  Durham.  2  Nott  iV:  McC.  (S.  C.) 
524.  10  Am.  Dec.  G37;  Decoll  v.  Leweuthal,  57  Miss.  331.  34  Am. 
Hop.  440;  House  v.  Alexander,  105  Ind.  109,  4  N.  E.  801,  85  Am.  Kop. 
189;  Wood  V.  Losoy,  50  Mich.  475,  15  N.  W.  557;  Ryan  v.  Smitli, 
165  Mass.  303,  43  N,  E.  100.  But  in  Mohney  v.  Evans.  51  Pa.  80. 
the  question  whether  farming  supplies  were  necessaries  was  left 
to  the  jury,  and,  if  he  uses  for  necessary  household  purposes  goods 
supi)Iled  to  him  as  a  tradesman,  he  becomes  liable  on  what  is  so 
u.^ed.    Turberville  v.  Whitehouse,  1  Car.  &  P.  94. 

03  Turner  v.  Trisby,  1  Strange.  IGS;  Ilainsford  v.  Fenwick,  Cart. 
215;  Tui)iior  v.  Cadwell.  12  Mete.  (Mass.)  559.  502,  40  Am.  Dec.  704; 
Davis  V.  Caldwell.  12  Cush.  (Mass.)  512;  Cantine  v.  Phillips.  5  liar. 
(Del.)  428;    Price  v.  Sanders,  00  Ind.  311. 

»4.T(>linson  v.  Lines.  G  Watts  &  S.  (Pa.)  SO,  40  Am.  Dec.  512; 
Nicholson  v.  Wilhorn,  13  Ga.  407. 

05  Cook  V.  Deatnn,  3  Car.  &  P.  114;  P.ainbridge  v.  Pickering.  2 
W.  Bl.  1325;  Brooker  v.  Scoft,  11  Mees.  &  W.  07;  Swift  v.  Bcniietr» 
10  Cush.  (.Mass.)  430,  437;  Iloyt  v.  Cas(>y,  114  Mass.  .307.  19  Am.  Rep. 
.371;  Trainer  v.  Trumbull.  141  Mass.  527.  10  X.  E.  701;  Wailing  v. 
Toll.  9  .Johns.  (N.  Y.)  141;  Guthrie  v.  Muri)hy.  4  Watts  (Pa.)  80. 
2S  Am.  Dec.  OSl;  null's  Assignees  v.  Coimolly.  3  McCord  (S.  C.)  0. 
15  Am.  Dec.  012;  Kline  v.  I/Amoureux,  2  Paige  (N.  Y.)  419.  22  Am. 
Dec.  cr)5;  Atchison  v.  Bruff,  50  Barb.  (X.  Y.)  381;  Perrln  v.  Wilson. 
10  Mo.  451;  McKanna  v.  Merry,  01  111.  177;  Englebert  v.  Tn.xell. 
4(>  Neb.  195,  5S  N.  W.  852,  26  L.  R.  A.  177.  42  Am.  St.  Rep.  Oi;.-.. 
If  the  infant  was  already  sufliciently  supplied,  it  is  immaterial  that 
the  seller  was  Ignorant  of  the  fact.  Brayshaw  v.  Eaton,  7  Scott. 
183;   Barnes  v.  Toye,  13  Q.  B.  Dlv.  414;   Johnstone  v.  Marks,  19  Q.  B. 


20  FORMATION  OF  THE  CONTRACT.         (Ch.  1 

consists  in  determining  the  province  of  the  court  and  jurj^  in 
ascertaining-  them.  It  is  frequently  stated  in  the  American 
cases  that  the  question  whether  articles  come  within  the  class  of 
necessaries  is  for  the  court,  and  that  the  question  whether  they 
were  necessaries  in  fact  is  for  the  jury.^^  In  England  it  has 
been  settled  that  the  question  whether  the  articles  were  neces- 
saries is  one  of  fact,  and  therefore  for  the  jury;  but  that,  like 
other  questions  of  fact,  it  should  not  be  left  to  the  jury  unless 
there  is  evidence  on  which  they  can  reasonably  find  in  the  af- 
firmative.^^ Practically,  there  is  little  difiference  in  the  two 
rules,  for  the  cases  involving  articles  intrinsically  incapable  of 
being  necessaries  are  rare,  and  the  question  in  most  cases  de- 
pends on  the  particular  circumstances.  It  is  impossible,  there- 
fore, in  most  cases,  for  the  judge  to  say  whether  articles  are 
within  the  class  of  necessaries,  without  taking  into  considera- 
tion the  circumstances  of  the  case;  and  if  he  determines  that 
the  articles  do  not,  under  the  circumstances,  come  within  the 
class,  he  in  effect  determines  that  there  is  not  evidence  on  which 
the  jury  could  reasonably  find  them  to  be  necessaries.     The 


Div.  509;  Johnson  v.  Lines,  6  Watts  &  S.  (Pa.)  80,  40  Am.  Dec.  542. 
But  having  an  income  out  of  which  the  infant  might  keep  himself 
supplied  is  not  equivalent  to  being  actually  supplied.  Burghart  v. 
Hall,  4  Mees.  &  W.  727;  Nicholson  v.  Wilborn,  13  Ga.  469;  Rivers 
V.   Gregg,  5  Rich.  Eq.  (S.  C.)   274. 

The  complaint,  in  an  action  against  an  infant  to  recover  for  board 
furnished  her,  is  not  demurrable  because  it  does  not  allege  that 
the  father  or  other  person  standing  in  loco  parentis  had  refused  or 
"was  unable  to  pay  for  the  board  furnished,  or  that  there  were  no 
persons  who  could  and  should  support  her.  Goodman  v.  Alexander, 
1G5  N.  Y.  2S9,  59  N.  E.  145,  55  L.  R.  A.  781. 

See  Sales  Act,  §  2. 

»«  Tupper  V.  Cadwell,  12  Mete.  (Mass.)  559,  563,  46  Am.  Dec.  704 ; 
Merriam  v.  Cunningham.  11  -Cush.  (Mass.)  40.  44;  Bent  v.  Manning, 
10  Vt.  225;  Stanton  v.  Willson,  3  Day  (Conn.)  37,  56,  3  Am.  Dec.  255 ; 
Glover  v.  Ott,  1  McCord  (S.  C.)  572;  Beeler  v.  Young,  1  Bibb  (Ky.) 
519;  Grace  v.  Hale,  2  Humph.  (Tenn.)  27,  36  Am.  Dec.  296;  McKan- 
na  v.  Merry,  63  111.  177. 

97  Ryder  V.  Wombwell,  L.  R.  3  Bxch,  93,  L.  R.  4  Exch.  32.  See, 
also,  Peters  v.  I^leraing,  6  Mees.  &  W.  42;  Wharton  v.  Mackcuzie, 
5  Q.  B.  606;  Davis  v.  Caldwell,  12  Cush.  (Mass.)  512.  per  Shaw.  Cl 
J.;  Johnson  v.  Lines,  6  Watts  &  S.  (Pa.)  SO,  40  Am.  Dec.  542;  Moh- 
ney  v.  Evans,  51  Pa.  80. 


g  9)  CAPACITY    OF    LUNATICS    AM)    DRUNKEN    MEN.  21 

burden  of  proving  that  llic  articles  were  necessaries  is  on  tlie 
plaintiff.  "* 

The  obligation  of  the  infant  to  pay  for  necessaries  beinj::: 
quasi  contractual,  he  is  liable  without  an  express  contract.*" 
And,  althouj^h  he  agrees  to  pay  a  stipulated  price,  the  amount 
for  which  he  can  be  held  liable  is  not  the  agreed  price,  but  the 
reasonable  value  of  the  goods. ^"°  Even  if  he  gives  his  note  in 
payment,  the  seller  can  recover  thereon  no  more  than  wiiat  the 
goods  were  worth.^"^ 

In  some  states,  where  a  father  fails  to  support  his  infant 
child,  the  child  has  a  right  upon  his  father's  credit  to  supply 
himself  with  necessaries;  but  it  is  very  generally  held  that  a 
father  is  not  liable  for  necessaries  supplied  to  the  child  without 
his  authoritv."' 


CAPACITY  OF  LUNATICS  AND  DRUNKEN  MEN. 

9.  A  contract  of  sale  or  of  purchase  by  a  lunatic  or  dmnkcn 
man,  or  other  person  non  compos  mentis,  is  voidable 
at  his  option,  if  at  the  time  of  makiup;  the  contract 
he   wtis  incapable   of  nnderstanding   its    effect. 

EXCEPTION— In  most  jurisdictions  the  sale  or  purchase  is 
not  voidable  if  the  other  party  did  not  know,  or  have 
reasonable  canse  to  knonr,  the  condition  of  the  lunatic 
or  drunken  man,  and  if  the  contract  has  been  so  far 
executed  that  the  other  party  cannot  be  restored  to 
his  former  position. 

98  Thrall  v.  Wright,  38  Vt.  494:  Wood  v.  I.osoy.  .^iO  Mich.  47-),  15 
N.  W.  .">ij7;    Nicholson  v.   Wilborn.    1.3  (la.  4(>7,  47.">. 

8»  Trainer  v.  Trumbull,  141  Mass.  5.30,  0  N.  E.  761;  Gregory  v. 
Lee,  «;4  Conn.  407.  30  .\tl.  53,  25  I>.  R.  A.  <518. 

100  Stone  V.  Donnison,  13  Pick.  (Mass.)  1,  23  Am.  Dee.  (151;  Vent 
V.  Osgood,  19  Pick.  (Mass.)  572.  575;  Locke  v.  Smith,  41  .\.  H. 
34^5;  Heeler  v.  Young,  1  liiWi  (Ky.)  519:  Rouchell  v.  Clary.  3  Brev. 
(S.  C.)  194;    Trainer  v.  Trumlnill,  supra:    Gregory  v.  Iah.',  su[>ra. 

101  Earle  v.  Kced,  10  Mctc.  (Mass.)  ;{.S7:  Pradley  v.  Pratt.  2:3  Vt. 
378;  Guthrie  v.  Morris.  22  Ark.  411.  Some  cases  hold  the  note  void. 
Swasey  v.  Vandurheyden's  Adm'r,  10  Johns.  (N.  Y.)  .33;  McMinn  v. 
Richmonds,  (i  Ycrg.  (Teun.)  9;  Aycrs  v.  Kurng,  87  lud.  245,  44  Am. 
Rep.  7.59.     See  Hyles.  Bills  (7th  Am.   Kd.)  01. 

102  TifYany.   Ag.  41. 


22  FORMATION  OF  THE  CONTRACT.  (Ch.  1 

Lniiafics. 

The  general  rule  of  the  common  law  is  that  the  contract  of 
a  lunatic  or  other  person  non  compos  mentis,  like  that  of  an  in- 
fant, is  not  void,  but  is  voidable  at  his  option.^"^  Thus,  it  may 
be  ratified  or  disaffirmed  by  the  lunatic  on  recovery  of  his 
sanity,^"*  or  by  his  guardian  or  other  representative,^"®  but 
not  by  the  other  party.^°* 

The  principal  difference  between  the  contract  of  a  lunatic  and 
that  of  an  infant  is  that  if  the  other  party  did  not  know,  or 
have  reasonable  cause  ^"^  to  know,  of  the  lunatic's  condition  of 
mind,  and  acted  in  good  faith,  and  the  contract  has  been  so  far 
executed  that  the  parties  cannot  be  placed  in  statu  quo,  it  cannot 
be  avoided.  The  leading  case  on  this  point  is  Molton  v.  Cam- 
roux,^"'^  the  principle  of  which  has  generally,  though  not  uni- 

103  Molton  V.  Camroux,  2  Exch.  487.  4  Esch.  17;  Matthews  v.  Bax- 
ter, L.  R.  8  Exch.  132;  Seaver  v.  PRielps,  11  Pick.  (Mass.)  304,  22 
Am,  Dec.  372;  Carrier  v.  Sears,  4  Allen  (Mass.)  336,  81  Am.  Dec.  707; 
Chew  V.  Bank  of  Baltimore,  14  Md.  299;  Ingraham  v.  Baldwin,  9 
N.  Y.  45;  Pol.  Cont.  91;  Bish.  Cont.  618;  Clark,  Cont.  (2d  Ed.)  178, 
2  Kent,  Comm.  4.51;  Thorpe  v.  Hanscom,  64  Minn.  201,  66  N.  W.  1; 
Creekmore  v.  Baxter,  121  N.  C.  31,  27  S.  E.  994;  JEtna  Life  Ins. 
Co.  V.  Sellers,  154  Ind.  370,  56  N.  E.  97,  77  Am.  St.  Rep.  481.  But 
see  Dexter  v.  Hall,  15  Wall.  (U.  S.)  9,  21  L.  Ed.  73;  Parker  v.  Mar- 
co (C.  C.)  76  Fed.  510. 

104  Allis  V.  Billings,  6  Mete.  (Mass.)  415,  39  Am.  Dec.  744;  Arnold 
V.  Richmond  Iron  Works^  1  Gray,  434;  Gibson  v.  Soper,  6  Gray 
(ilass.)  279,  66  Am.  Dec.  414;  Turner  v.  Rusk,  53  Md.  65. 

105  McClain  v.  Davis,  77  Ind.  419;  Halley  v.  Troester,  72  Mo.  73; 
Moore  v.  Hershey,  90  Pa.  196;   Flint  v.  Valpey,  130  Mass.  385. 

106  Allen  V.  Berryhill,  27  Iowa,  .534,  1  Am.  Rep.  309. 

107  Beavan  v.  McDonnell,  10  Exch,  184;  Lincoln  v.  Buckmaster, 
32  Vt.  G52;  Matthiepsen  &  Weichers  Refining  Co.  v.  McMahon's 
Adm'r,  38  N.  J.  Law,  536,  544. 

10  8  2  Exch.  487,  4  Exch.  17,  Ewell,  Lead.  Cas.  614.  See,  also,  Bea- 
van v.  McDonnell,  9  Exch.  309.  10  Exch.  184;  Elliot  v.  Ince,  7  De 
Gex,  M.  &  G.  475,  487;  Drew  v.  Nunn,  4  Q.  B.  Div.  661;  Niell  v.  Mor- 
ley,  9  Vcs.  478,  Ewell,  Lead.  Cas.  628. 

In  Molton  v.  Camroux  it  was  said:  "The  modern  cases  show  that 
when  the  state  of  mind  was  unknown  to  the  other  contracting 
party,  and  no  advantage  was  taken  of  the  lunatic,  the  defense  can- 
not prevail,  especially  where  the  contract  is  not  merely  executory, 
but  executed  in  whole  or  in  part,  and  the  parties  cannot  be  restored 
to  their  original  position."  The  distinction  between  executory  and 
executed  contracts,  however,  appears  to  have  been  repudiated  in 


§  9)  CAPACITV    OF    LUNATICS    ANl^    DUUNKIiN    MKN.  2:{ 

versally,  been  followed  in  this  country.'"'*  Thi>  has  been  called 
a  decision  of  necessity,  as  a  contrary  doctrine  would  render  all 
ordinary  dealings  between  man  and  man  unsafe.'*"  If,  how- 
ever, the  lunatic  restores,  or  offers  to  restore,  the  consideration 
which  he  has  received,  the  necessity  ceases,  and  he  may  avoid 
the  contract.'"  The  contractual  capacity  of  a  lunatic  or  insane 
person  under  guardianship  depends  upon  statute,  and  differs  in 
different  states."" 


England,  where  the  more  roeeut  rule  appears  to  be  that  the  eontract 
of  a  lunalie  is  biudiug  unless  the  other  party  knew  of  his  condition. 
Imperial  Loan  Co.  v.  Stone,  (1892)  1  Q.  B.  51)9.  See  Anson,  Cent 
(8th  Kd.)  120. 

lou  Young  V.  Stevens,  4S  N.  H.  133,  2  Am.  llep.  202,  97  Aiu.  Dee. 
r.92;  Deals  v.  See,  10  Ta.  5<>.  49  Am.  Dee.  573;  I^uicaster  County 
Nat.  Dank  v,  Moore,  78  Pa.  407,  21  Am.  Uep.  24;  Mutual  Life  In* 
Co.  V,  Hunt,  14  Ilun,  1(!9.  79  N,  Y.  r)41;  Ballard  v.  MeKenna,  4  Rieh. 
E(i.  (S.  C.)  3r>S;  Matthiessen  &  Weiehers  lleliuing  Co.  v,  Me.Mahon's 
Adm'r,  38  N.  J.  Law,  530;  Wilder  v.  Weakley,  34  Ind.  181;  Fay  v. 
Iturdltt,  81  Ind.  433.  42  Am.  Hep.  142;  Northwestern  Mut.  Fire  Ins. 
Co.  V.  Blankenship.  91  Ind.  535,  4S  Am.  Rep.  185;  Abbott  v.  Creal, 
5G  Iowa,  175,  9  N.  W.  115;  Alexander  v.  Ilaskins.  G8  Iowa,  73,  25 
N.  W.  935;  Rusk  v.  Fenton,  14  Bush  (Ky.)  49<>,  29  Am.  Rep.  413; 
Ripuan  v.  Green,  80  N.  C.  230.  30  Am.  Rep.  77;  Buridiani  v.  Kidwell, 
113  111.  425;  Gribben  v.  Maxwell,  34  Kan.  8,  7  Pae.  584.  55  Am.  Rep. 
233;  Leavitt  v.  Files,  38  Kan.  20.  15  Pae.  891;  Sdiaps  v.  Lohner,  54 
Minn.  208,  55  N.  W.  911;  Youn  v.  Lamont,  50  Minn.  210,  57  N.  W. 
478;  Harrison  v.  Otley,  101  Iowa,  052,  70  N.  W.  724;  Flaeh  v.  Gott»- 
chalk  Co..  88  Md.  308,  41  Atl.  rK)8.  42  L.  R.  A.  745,  71  Am.  St.  Rep. 
418;  McKenzie  v.  Donnell.  151  Mo.  431,  52  S.  W.  214.  The  leading 
ease  against  thlsi  doctrine  is  Seaver  v.  Phelps,  11  Pick.  (Mass.)  301, 
22  Am.  Dee.  372;  Ewell,  I^ad.  Cas.  GIO.  See.  also.  (Gibson  v.  Sopor. 
0  Gray  (Mass.)  279,  00  .\m.  Dec.  414;  Brigham  v.  Fayerweather,  144 
Mass.  .52.  10  N.  F3.  735;  Hovey  v.  Plobson.  .53  Me.  451.  89  Am.  Dec. 
705;  Edwards  v.  Davenport  (C.  C)  20  Fed.  750;  Wager  v.  Wagoner, 
53  Neb.  511,  73  N.  W.  937.  In  Crawford  v.  Seovell.  94  Pa.  48.  .39 
Am.  Rep.  700.  Trunkey.  J.,  says:  "In  this  country  that  rule  Is  not 
universally  extended  to  .sales  of  personalty,  and  Is  not  applied  to 
conveyances  of  real  estate."  In  several  of  the  cases  above  cited, 
however,  it  is  applied  to  conveyances. 

'10  Elliot  V.  Ince,  7  De  Gex.  M.  &  G.  475,  per  Lord  Cranworth. 

ii'Boyer  V.  Berryman,  123  Ind.  451,  24  N.  E.  249;  Myers  v. 
Knabe.  51  Kan.  720.  33  Pae.  002;  Warlleld  v.  Warfleld.  70  Iowa.  <133. 
■41  N.  W.  .383;    Eaton  v.  Eaton.  37  N.  J.  I-iw.  108.  is  Am.  Rep.  710. 

112  Blsh.  Cont.  §  977:   Clark,  Cont.  (2d  Ed.)  182. 


24  FORMATION    OF   THE    CONTRACT.  (Ch.  1 

Drunken  Men. 

The  rules  in  regard  to  the  contracts  of  a  man  who  is  so  in- 
toxicated as  not  to  know  what  he  is  doing  are  the  same.^^^ 
His  contracts  are  voidable,  but  not  void,  and  hence  may  be 
ratified  by  him  when  sober.^^* 

Necessaries. 

A  lunatic  is  liable  for  necessaries  furnished  him.^'^^  As  in 
the  case  of  an  infant,  "necessaries"  embrace  articles  suitable 
to  his  condition  and  degree,^^^  but  in  the  case  of  a  lunatic  the 
term  would  probably  be  more  liberally  construed. ^^^  It  seems 
that  a  drunken  man  also  is  liable  for  necessaries/^* 

113  Pol.  Cont.  87;   Bisli.  Cont.  §  979;    Clark,  Cont.  (2d  Ed.)  186. 

114  Matthews  v.  Baxter,  L.  R.  8  Exch.  132  (i^oiuting  out  that 
"void,"  as  used  in  Gore  v.  Gibson,  13  Mees.  &  W.  623,  Ewell,  Lead. 
Cas.  734,  must  be  taken  to  mean  "voidable") ;  Molton  v.  Camroux, 
4  Exch.  17;  Carpenter  v.  Rodgers,  61  Mich.  384,  28  N.  W.  156,  1 
Am.  St.  Rep,  59.5;  Broadwater  v.  Darne,  10  Mo.  277;  Bish.  Cont.  § 
985;    Clark,  Cont.  (2d  Ed.)  186. 

In  Hunter  v.  Tolbard,  47  W.  Va.  2.58,  34  S.  R  737,  it  is  held  that 
the  contract   is   void. 

115  Baxter  v.  Eaii  of  Portsmouth,  5  Barn.  &  C.  170;  Bagster  v. 
Same,  7  Dow.  &  R.  614;  Manby  v.  Scott,  1  Sid.  112;  Dane  v.  Kirk- 
wall, 8  Car.  &  P.  679;  Wentworth  v.  Tubb.  1  Younge  &  C.  Ch.  171; 
Williams  v.  Wentworth,  5  Beav.  325;  Nelson  v.  Duncombe,  9  Beav. 
211;  Richardson  v.  Strong,  35  N.  C.  106,  55  Am.  Dec.  430;  La  Rue 
V.  Gilkyson,  4  Pa.  375,  45  Am.  Dec.  700;  Sawyer  v.  Lufkin,  56  Me. 
308;  Hallett  v.  Oakes,  1  Cush,  (Mass.)  296;  Kendall  v.  May,  10  Al- 
len (Mass.)  59;  Skidmore  v.  Romaine,  2  Bradf.  Sur.  (N.  Y.)  122; 
Barnes  v.  Hathaway,  66  Barb.  (N.  Y.)  453;  Blaisdell  v.  Holmes,  48 
Vt.  492;  McCormick  v.  Littler,  85  111.  62,  28  Am.  Rep.  610;  In  re 
Renz,  79  Mich.  216,  44  N.  W.  598;  Stannard  v.  Burns,  63  Vt.  244.  22 
Atl.  460.  See  In  re  Rhodes,  44  Ch.  Div.  94  ^showing  that  the  obliga' 
tion  is  quasi  contractual).     And  see  Sales  Act,  §  2. 

116  Baxter  v.  Earl  of  Portsmouth,  5  Barn.  &  C.  170;  Bagster  v. 
Same,  7  Dow.  &  R.  614;  La  Rue  v.  Gilkyson.  4  Pa.  375.  45  Am.  Dec. 
700;    Richardson  v.  Strong,  35  N.  C.  106,  55  Am.  Dec.  430. 

117  Kendall  v.  May,  10  Allen  (Mass.)  59.  See  in  re  Persse,  3  Mal- 
loy,  94. 

118  Gore  V.  Gibson,  13  Mees.  &  W.  623,  per  Pollock,  C.  B.,  and  Al- 
derson,  B.    See,  also,  Brockway  y.  Jewell,  52  Ohio  St  187,  39  N.  K 

47a 


§  lU)  CAPACITY    OF    MAUUIKI)    WoMKN. 


CAPACITY    OF   MARRIED    WOMEN. 

10.  At  coiniuoii  law  contracts  of  sale  and  pnrcbaBO  by  inan- 
rietl  woiucu  are  in  j;i"nfral  void;  but  the  capacity  of 
married  tvoiiicu  to  contract  baa  gBuerally  been  extend- 
ed  by    statute. 

Altliouc:h  the  common-law  capacity,  or  rathc-r  incapacity,  of 
a  married  woman  to  buy  and  sell  is  coextensive  witli  her  general 
capacity  or  incapacity  to  contract,  and  tlie  subject  therefore 
falls  rather  within  the  law  of  contract  and  of  married  women 
than  of  sale,  a  few  words  on  the  subject  may  not  be  out  of 
place.  At  common  law  a  married  woman  is  incompetent  to 
contract.^ ^°  A  contract  with  her  is  not,  as  in  the  case  of  an  in- 
fant or  lunatic,  merely  voidable,  but  is  void,^-"  and  hence  is 
incapable  of  ratification  upon  termination  of  coverture.*-* 
She  cannot,  even  w'hile  livinij  apart  from  her  husband  and  en- 
joying a  separate  maintenance  secured  by  deed,  make  a  valid 
purchase,  on  her  own  account,  even  of  necessaries.*^^  To 
the  general  rule  of  her  incapacity  to  contract,  however,  there 
are  several  exceptions:  (1)  When  the  husband  is  civiliter 
mortuus  (that  is,  dead  in  law,  as  when  he  is  imder  sentence  of 
penal  servitude,  transportation,  or  banishment),  her  disability 
is  suspended.*-^  and.  according  to  some  authorities,  it  is  sus- 
pended when  he  is  an  alien  and  resident  abroad.*-*  (2)  By 
the  custom  of  the  city  of  London,  a  married  woman  might 

110  Co.  Litt.  112d. 

120  Anson.  Cont.  (4th  VaU  117:  Rish.  Pont.  §  niO:  Clark,  Cont.  (2.1 
Ed.)  ISS;    Srhonlor.  Ilusb.  &  Wife.  §§  07.  OS. 

121  Zonch  V.  Parsons.  .3  I'.urrows.  1701;  Clark.  Cont.  (2(1  FA.)  Ill  : 
Sclunilcr,  llusli.  &  Wife,  §  90.  Tliore  are,  however,  some  authoritiiw 
whu-li  hold  Ihat  the  moral  consideration  is  suffleient  to  supr)ort  a 
promise  after  termination  of  eovertnre.  I.ee  v.  Mnfri^erid^re.  .")  Taunt. 
3G.     Ewell.  lA'iHl.  Cas.  :522,  XJl;    Stew.  Ilnsb.  &  Wife,  S  ;{<'«(>. 

122  Marshall  v.  Rutton.  8  Term  R.  TA't. 

123  lu-nj.  Sales,  §  32;  Stew.  II\isl).  &  Wife,  §  358;  Clark,  Omt.  (2d 
Ed.)  180. 

12*  RenJ.  Sale.s,  §§  33,  34;  Slew.  IIusl..  &  Wife.  §  .^.^S;  Gregory  v, 
raul.  K>  Mas.s.  31;  MeArthur  v.  Blnom.  2  Duer  (N.  Y.)  151.  So  wh.-re 
the  husband  was  a  ritizen  and  resident  In  another  state.  Abbot  v. 
Bajley,  G  Pick.  (Mass.)  89. 


26  FORMATION  OF  THE  CONTKACT.  (Cll.  1 

trade,  and  for  that  purpose  might  make  vaHd  contracts.^ ^'^  (3) 
In  equity,  when  a  married  woman  has  separate  property,  she 
may,  under  certain  circumstances,  contract  so  as  to  render  it 
liable.^'*'  It  is  to  be  noticed  that  the  exceptions  to  the  incapacity 
of  married  women  to  contract  are  not  confined,  as  is  the  excep- 
tion in  the  case  of  infants  and  lunatics,  simply  to  purchases  of 
necessaries,  but  that  it  extends  to  their  general  contractual 
capacity. 

A  husband  is  bound  to  maintain  his  wife  and  to  supply  her 
with  necessaries,  and  if  he  fails  in  this  duty  she  has  the  power  to 
pledge  his  credit  for  the  purpose  of  supplying  herself.  The 
foundation  of  his  liability  is  the  duty  of  support,  and  his  obliga- 
tion is  one  of  quasi  contract,  and  is  distinct  from  that  which 
arises  when  he  has  conferred  authority  upon  his  w/fe  to  pledge 
his  credit.^-'^ 

The  common  law  in  regard  to  the  contractual  capacity  of 
married  women  has  been  radically  changed  by  legislation  in 
England  ^^^  and  in  most  of  the  states  of  this  country,^-^  and 
in  many  states  her  disability  to  contract  has  been  wholly  re- 
moved. These  statutory  provisions  differ  greatly  among  them- 
selves, and  a  consideration  of  the  statutory  capacity  of  married 
women  to  buy  and  sell  cannot  be  here  attempted. 


WHO    CAN    SELI<. 

11.    As  a  mle,  no  person  can  sell  personal  property,  so  as  to 
convey  a  valid  title  thereto,  unless  lie  be  the  oxirner. 

EXCEPTIONS— (1)  In  England,  but  not  in  the  United 
States,  Tehere  goods  are  sold  in  market  overt,  accord- 
ing to  the  usage  of  the  market,  the  buyer  acquires  a 
good  title  to  the  goods,  provided  he  buys  them  in  good 
faith,  and  without  notice  of  defect  of  title  on  the  part 
of  the   seller.  130 

125  Beard  v.  Webb,  2  Bos.  &  P.  93;    Benj.  Sales,  §  35. 

126  Anson,  Cent  (4th  Ed.)  118;  Clark,  Cont.  (2d  Ed.)  190;  Schouler, 
Husb.  &  Wife,  §  189  et  seq. 

127  Tiffany,  Ag.  40. 

128  Benj.  Sales,  §  37  et  seq. 

12  9  stim.  Am.  St.  Law,  §  (H82. 

130  The  Case  of  Market-Overt,  5  Coke,  83b;    Tud.  Merc.  Cas.  (3d 


§   11)  WHO    CAN    SKI.L.  27 

(2)  Where    a,    promissory    uoto,    bill    of    exchange,    or    other 

uof^otlablo  iuBtruiiient  payable  to  bearer  or  iucloriied 
iu  bliuik  is  uci;otiate<l  by  the  holder  before  ninturity 
to  a  boua  fide  purchaser  for  valno  urithoiit  notice,  the 
imrchaser  acquires  a  ^ood  title  to  the  iustrunient. 

(3)  A  person  wrho  is  not   the   owner  of  (;oods  may   sell  them, 

■o  as  to  pass  the  title  of  the  ow^ner,  if  he  acts  under 
the  authority  or  with  the  consent  of  the  owner,  or 
under  any  special  common-law  or  statutory  power  of 
■ale,  or  under  the  order  of  a  court  of  competent  juriB- 
dietion.i-i 

(4)  A  sale  made  by  a  person  not  thereto  authorized  may  be 

good  as  against  the  ow^ner  by  estoppel,  where  the  owrn- 
er  by  his  words  or  conduct  is  precluded  from  denying 
the   seller's  owuershix>  or  authority  to   sell. 

(5)  In  some  jurisdictions  a  person  who  has  sold  goods,   but 

who  continues  in  the  possession  thereof,  can  transfer 
the  property  therein  to  a  bona  fide  purchaser,  who  ob- 
tains possession  of  the  goods,  notiirithstauding  the 
prior  sale. 

(6)  By   statute   in  England   and   in   many   states,    purchasers 

from  factors  and  other  agents  intrusted  with  and  iu 
possession  of  goods,  or  of  the  documents  of  title  to 
goods,  may  under  certain  circumstances  acquire  good 
title  to  the  goods,  although  the  factor  or  agent  is  not 
aiithorized  to  sell. 

(7)  When   the    seller   of   goods   has   a   voidable    title    thereto, 

but  his  title  has  not  been  avoided  at  the  time  of  sale, 
the  buyer,  in  general,  acquires  a  good  title,  provided  ho 
buys  them  iu  good  faith,  for  value,  and  without  notice 
of  the  seller's  defect  of  title.i3- 

III  General. 

Not  only  must  the  parties  to  a  sale  be  capable  of  contracting', 
but  the  seller  must  (subject  to  the  exceptions  mentioned)  be 
the  owner  of  the  thinp:  sold ;  for.  as  a  rule,  no  one  can  pass  to 
the  buyer  a  better  title  than  he  himself  possesses.  "Nemo  dat 
(juod  non  habet."  ^'^     A  person,  therefore,  however  innocent, 

Ed.)  p.  274;  Crane  v.  Dock  Oo.,  5  Best  &  S.  313,  33  Law  J.  (->.  H.  --». 
229;  Benj.  Sales,  §  8  et  seq.;   Sale  of  Goods  Act,  §  22. 

131  See  Sales  Act,  §  23  (1),  (-)  (bi;  Sale  of  Goods  Aft.  §  21  (1).  (2) 
(b). 

i»2  Sales  Act,  §  24;   Sale  of  Goods  Act,  §  '23. 

138  PctT  V.  Humphrey,  2  Adol.  &  11  495;  Whistler  v.  l\.r.si.  r.  32 
Law  J.  C.  P.  IGl;    Coupor  v.  Willoiuatt.  1  C.  B.  072,  14  Law  J.  C.  P. 


28  FORMATION  OF  THE  CONTRACT.  (Cll.  1 

why  buys  goods  from  one  not  the  owner,  obtains,  in  general,  no 
property  in  them  whatever ;  and  even  if,  in  ignorance  that  the 
goods  were  lost  or  stolen,  he  resells  them  in  good  faith  to  a 
third  person,  he  remains  liable  in  trover  to  the  original  own- 

It  is  to  be  observed  that,  in  the  cases  covered  by  the  first  and 
second  exceptions,  the  buyer,  like  one  who  in  good  faith  receives 
money  in  payment,^ ^^  obtains  a  good  title  as  against  all  the 
world — that  is,  even  against  one  who  has  lost  the  thing  sold, 
or  from  whom  it  has  been  stolen — while  in  the  cases  covered 
by  the  other  exceptions  the  buyer  simply  obtains  the  title  (if 
any)  of  a  particular  person,  who  may  or  may  not  be  the  true 
owner,  without  prejudice  to  the  rights  of  any  person  who  may 
in  fact  have  a  superior  title. 

Market  Overt. 

The  rules  of  market  overt  apply  only  to  a  limited  class  of 
retail  transactions/^®  All  shops  in  the  city  of  London  are 
market  overt,  for  the  purpose  of  their  own  trade;  ^^^  but  a 
sale  by  sample  is  not  within  the  custom,  because  the  whole 
transaction,  and  not  merely  the  formation  of  the  contract,  must 

219;  Cundy  v.  Lindsay,  3  App.  Cas.  459;  Stanley  v.  Gay  lord,  1  Cusli. 
(Mass.)  5.36,  48  Am.  Dec.  643;  Obapman  v.  Cole,  12  Gray  (Mass.)  141, 
71  Am.  Dec.  739;  Parsons  v.  Webb,  8  Greenl.  (Me.)  38;  Galvin  v. 
Bacon,  11  Me.  28,  25  Am.  Dec.  258;  Prime  v.  Cobb,  63  Me.  2(X>;  lii- 
ford  V.  Montgomery,  7  Vt.  418;  Bryant  v.  Wbitcber,  52  N.  H.  15S; 
Barrett  v.  Warren,  3  Hill  (N.  Y.)  348;  Williams  v.  Merle,  11  Wend. 
(X.  y.)  80,  25  Am.  Dec.  604;  Saltus  v.  Everett,  20  Wend.  (N.  Y.) 
267,  .32  Am.  Dec.  541;  Scollans  v.  Rollins,  173  Mass.  275,  53  N.  E. 
86.3,  73  Am.  St.  Rep.  284  (full  citation  of  cases).  Tbe  cases  cited  mider 
the  exceptions  may  also  generally  be  cited  under  the  rule.  Benj. 
Sales,  §  6. 

134  stone  V.  Marsh,  6  Barn.  &  C.  551;  Marsh  v.  Keating,  1  Bing. 
N.  C.  198,  2  Clark  &  F.  250;  White  v.  Spettigue,  13  Mees.  &  W.  603; 
Lee  V.  Bayes,  18  C.  B.  590;  Hoffman  v.  Carow,  20  Wend.  (N.  Y.)  21; 
Courtis  V.  Oane,  32  Vt.  232,  76  Am.  Dec.  174;  Gilmore  v.  Newton,  9 
Allen  (Mass.)  171,  85  Am.  Dec.  749;  Riley  v.  Water-Power  Co.,  11 
Cush.  (Mass.)  11. 

135  Miller  v.  Race,  1  Burrows,  4.52;  Saltus  v.  Everett,  20  Wend. 
(N.  Y.)  267,  32  Am.  Dec.  541;  Chapman  v.  Cole,  12  Gray  (Mass.)  141, 
71  Am.  Dec.  739. 

136  Benj.  Sales,  §  8. 

187  See  Wilkinson  v.  Rex,  2  Camp.  335. 


>j   11)  WHO    CAN    SKLL.  29 

take  place  within  tlic  open  market.' '*'  Outside  the  city  rif  Lon- 
don, markets  overt  may  exist  by  grant  or  prescription.""  The 
exception  in  favor  of  sales  in  market  overt  lias  never  existed 
in  the  United  States.''" 

Negotiable  Intsnnnciils. 

Where  a  negotiable  iiislrumeiit  is  payable  to  bearer  or  in- 
dorsed in  blank,  so  as  to  be  transferable  by  tlelivery,  a  bona  fide 
purchaser  under  the  circumstances  mentioned  in  the  black-let- 
ter text  acquires  a  good  title  to  the  instrument,  although  the 
seller  had  not  himself  a  good  title. '*^  Moreover,  if  a  negotia- 
ble instrument  is  duly  negotiated  to  a  bona  fide  purchaser 
under  the  same  circumstances,  he  holds  the  instrument  free 
from  most  of  the  defenses  available  to  prior  parties  be- 
uveen  themselves.'*-  As  has  been  stated,  the  transfer  of  the 
title  to  negotiable  instruments  stands  upon  a  dillerent  footing 
from  the  transfer  of  title  to  goods. ^*^ 

Sale  nudcr  Power. 

The  owner  may.  of  course,  make  a  sale  by  an  agent  thereto 
authorized;  and  he  may,  as  in  the  case  of  a  mortgage,  expressly 
confer  on  another  the  power  of  making  a  sale  upon  a  certain 
contingency.  But,  besides  these  cases  of  sale  with  the  consent 
of  the  owner,  there  are  many  cases  where  the  authority  is  im- 
plied by  law  from  the  relation  of  the  parties,  or  is  conferred  by 
law.  Thus  a  pawnee  of  goods  has  authority,  in  case  of  default, 
to  sell  the  goods  pledged;  '**  and  the  master  of  a  ship  has  im- 
plied authority,  in  case  of  necessity,  to  sell  the  goods  of  the 

i-'s  Crnno  v.  London  Dock  Co.,  a  Host  &  S.  ni.'J.  :!n  Law  J.  Q.  H.  l."24. 

i3onialiu.  Sale  of  Goods  Act  (OtU  lOd.)  CO. 

i«o  Daino  v.  l?ald\vin.  S  Mass.  .")1S;  Townc  v.  Col'ins,  14  Mass.  ."tOO; 
WheolwriKht  v.  Dcp'-ysltT.  1  .I(«lins.  (N.  Y.^  471.  '^  Am.  Doc.  .*J4."»;  IlofT- 
inan  v.  Carow.  Ii2  Wend.  (N.  \.)  2S.';  Ilosack  v.  Woavor.  1  Ycatt's 
iTonn.)  47S:  I'iiston  v.  ^Vol•tllinKto^J.  ',  Sort:.  A:  K.  (Pa.»  l-'W;  HrownliiK 
V.  Ma(,'ili.  2  Tlar.  &  .1.  (Md.)  .'SOS;  Roland  v.  r.undy.  r.  Ohio.  2n2  :  Veut- 
ri'ss  V.  Siiiitli.  10  Pot.  (U.  S.)  KJl.  !>  L.  IM.  :5S2:    2  Kent,  Connn.  324. 

1*1  Norton.   liills  &  N'otos  (yd  Ed.)   11.  204. 

i<2See  Norton,  Bills  &  Notes  (3d  Ed.)  21G  et  seq. 

1*3  Ante,   p.   4. 

M4  2  Kent,  Conini.  r>82;  Schouler,  Rallm.  §  227  et  soq.;  Tiffany. 
Ag.  41;  Guinzhurv:  v.  IL  W.  Downs  Co.,  l(v>  Mass.  4G7.  43  N.  E.  VJo. 
r.2  Am.  St.  Rep.  nj.'j. 


30  FORMATION  OF  THE  CONTRACT.  (Cll.  1 

shippers  of  the  cargo.^*'^  So  a  landlord  distraining  for  rent 
may  sell  the  goods  of  his  tenant.^*®  And  a  sheriff,  as  an  officer 
on  whom  the  law  confers  a  power,  may  sell  the  goods  of  the 
defendant  in  execution  ;  nor  will  the  title  to  them  be  affected  if 
the  execution  was  voidable,^*''  though,  if  the  defendant  had  no 
title,  the  sheriff  can,  of  course,  give  none.^*^  It  would  be  use- 
less to  multiply  illustrations  of  the  cases  in  which  property  may 
be  sold,  without  the  consent  of  the  owner,  under  process  of  law. 

Estoppel. 

The  English  Sale  of  Goods  Act  provides:  "Subject  to  the 
provisions  of  this  act,  where  goods  are  sold  by  a  person  who 
is  not  the  owner  thereof,  and  who  does  not  sell  them  under  the 
authority  or  with  the  consent  of  the  owner,  the  buyer  acquires 
no  better  title  to  the  goods  than  the  seller  had,  unless  the  own- 
er of  the  goods  is  by  his  conduct  precluded  from  denying  the 
seller's  authority  to  sell."  ^*®  In  other  words,  where  the  owner 
by  his  words  or  conduct  causes  another  to  believe  that  the  goods 
belong  to  a  third  person  and  to  buy  them  from  such  third  person 
in  that  belief,  he  is  estopped  to  assert  his  title  against  such  buy- 
gj._i5o    ]\/ie]-e  carelessness,  however,  on  the  part  of  the  owner  in 

14  5  3  Kent,  Comm.  173. 

i46Wooclf.  Landl.  &  Ten.  (13th  Ed.)  479^81;  Tayl.  Landl.  &  Ten. 
(8th  Ed.)  §  57  et  seq. 

147  Turner  v.  Felgate,  1  Lev.  95;  Manning's  Case,  8  Coke,  94b; 
Emmett  v.  Thorn,  1  Maule  «&  S.  425 ;  Bank  of  U.  S.  v.  Bank,  6  Pet. 
(U.  S.)  9,  8  L.  Ed.  299;  Park  v.  Darling.  4  Cush.  (Mass.)  197;  Jack- 
son V.  Cadwell,  1  Cow.  (N.  Y.)  G23 ;  Woodcock  v.  Bennet,  Id.  711, 
13  Am.  Dec.  5C8;  Stinson  v.  Ross,  51  Me.  556,  81  Am.  Dec.  591.  Oth- 
erwise where  the  judgment  or  execution  is  void.  Lock  v.  Sellwood,  1 
Q.  B.  73G;  Camp  v.  Wood,  10  Watts  (Pa.)  118;  Caldwell  v.  W^alters, 
18  Pa.  79,  55  Am.  Dec.  592 ;  Kennedy  v.  Duncklee,  1  Gray  (Mass.)  65. 
See  Jetton  v.  Tobey,  62  Ark.  84,  34  S.  W.  531. 

148  Farrant  v.  Thompson,  5  Barn.  &  Aid.  826;  Shearick  v.  Huber, 
6  Bin.  (Pa.)  2;  Griffith  v.  Fowler.  18  Vt.  390;  Buffum  v.  Deane.  8 
Cush.  (Mass.)  41;  Champney  v.  Smith,  15  Gray  (Mass.)  512;  Wil- 
liams V.  Miller,  16  Conn.  146;  S.vmonds  v.  Hall,  37  Me.  354,  59  Am. 
Dec.  53;  Coombs  v.  Gorden.  59  Me.  Ill;  Bryant  v.  Whitcher,  52  N.  H. 
158. 

140  Section  21  (1),  followed  in  Sales  Act,  §  23  (1). 

isopjckard  v.  Sears,  6  Adol.  &  E.  469;  Gregg  v.  Wells,  10  Adol.  & 
E.  90;  Freeman  v.  Oooke,  2  Exch.  654;  Knights  v.  Wiffen,  L.  R.  5 
Q.  B.  660.  See,  also,  Henderson  &  Co.  v.  Williams  (1805)  1  Q.  B.  521. 
Cf.  Anderson  v.  Read,  106  N.  Y.  333,  13  N.  E.  292 ;  post,  p.  31. 


§  11)  WHO    CAN    SKI.L.  81 

guarding  his  property,  is  not  enough  to  create  an  estoppel.'** 
To  create  an  estoppel,  he  must  by  his  words  or  acts,  on  whicli 
the  buyer  has  rclicil,  have  misled  the  buyer.' *- 

Same — Sale  by  Person  in  Possession  of  Goods. 

At  common  law  a  person  in  possession  of  goods,  although 
with  the  consent  of  the  owner,  camiot,  as  a  rule,  confer  on 
another,  cither  by  sale  or  pledge,  any  better  title  to  the  goods 
than  he  himself  has.'''^  Authority  to  sell  is  not  to  be  inferred 
from  the  mere  possession  of  goods. ^''*  A  mere  bailee  can  give 
no  title. '-'^  Nor,  where  the  question  is  unaffected  by  statute, 
can  a  buyer  in  i)ossession  under  a  so-called  conditional  sale  pass 
title  to  a  bona  tide  purchaser.' ^°  Intrusting  another  with  the 
possession,  indeed,  if  accompanied  by  other  circumstances  in- 
vesting the  possession  with  the  appearance  of  ownership,  may 
estop  the  owner  from  denying  the  ownership  of  the  person 
whom  he  has  so  trusted,  as  against  a  buyer  from  him  who  has 

•  151  Kno.x  V.  American  Co.,  148  N.  Y.  441,  42  N.  E.  988,  31  L.  K.  A. 
771».  r>l  Am.  St.  Kep.  700;  Baiijior  Electric  Light  &  Power  Co.  v.  Hob- 
insou  (C.  C.)  52  Fed.  520;  O'llfi-nni  v.  Gray,  1<>8  Mass.  573,  47  N.  E. 
420.  40  L.  R.  A.  408,  00  Am.  St.  lUv-  411.  Cf.  Scollans  v.  Kollin.s.  173 
Mass.  275,  53  N.  E.  S»«,  73  Am.  St.  Rep.  284. 
15  2  Farquarson  v.  Kins  {W)2)  App.  Cas.  325. 

153  "At  common  law  a  person  in  possession  of  goods  could  not  con- 
fer on  another,  either  by  sale  or  by  pledge,  any  better  title  to  the 
goods  than  he  himself  had.  *  *  ♦  xhe  general  rule  was  that  to 
make  either  a  sale  or  a  pledge  valid  apainst  the  owner  of  the  g<»od3 
sold  or  ple<lged,  it  must  be  shown  that  the  seller  or  iile(l;:er  had  au- 
thority from  the  owner  to  sell  or  pledge,  as  the  case  might  l)e.  If  the 
owner  of  the  goods  had  so  a<-ted  as  to  clothe  the  seller  or  ple<lger 
with  apparent  authority  to  sell  or  pledge,  he  was  at  common  law  pre- 
cluded as  against  those  who  were  induced  bona  fide  to  act  on  the 
faith  of  that  apparent  authority,  from  denying  that  he  had  given  such 
an  authority,  and  the  result  as  to  them  was  the  same  as  if  he  had 
really  given  it.  15ut  there  was  no  such  preclusion  as  against  those 
who  had  notice  that  the  real  authority  was  limited."  Cole  v.  Bank, 
L.  R.  10  C.  r.  3."4,  at  page  3i;2.  per  Blackburn.  J. 

154  Cole  V.  Bank,  supra;  Johnson  v.  Credit  Lyonnals,  2  C.  P.  Dlv. 
224.  affirmed  3  C.  P.  Div.  32;  Saltus  v.  Everett.  20  Wend.  (N.  Y.)  207. 
32  Am.  Dee.  541;   Covill  v.  Hill.  4  Denio  (N.  Y.)  323. 

155  Wilkinson  v.  King,  2  Camp.  335;  Covill  v.  Hill,  supra;  Leigh 
V.  Railroad  Co.,  58  Ala.  17S;  Baker  v.  Taylor.  54  Minn.  71.  55  N.  W. 
823;    Rumpf  v.  Barto.  10  Wash.  ;i82.  3>^  Pac.  1120. 

150  Post,  p.  135. 


32  FORMATION    OF   THE    CONTRACT.  (Ch.  1 

relied  upon  the  apparent  ownership — as  where  the  owner  has 
invested  the  person  intrusted  with  possession  with  the  indicia 
of  title.^^^  But  it  is  not  enough  to  raise  an  estoppel  that  the 
person  to  whom  the  goods  are  intrusted  is  a  dealer  in  that  class 
of  goods. ^^^ 

Same — Sale  by  Vendor  in  Possession. 

In  some  jurisdictions,  contrary  to  the  general  principle  that 
delivery  of  possession  is  not  essential  to  the  transfer  of  the 
property,  the  rule  prevails  that  delivery  is  essential  to  transfer 
the  property  as  against  bona  fide  purchasers,  and  that  a  person 
who  has  sold  goods,  but  who  continues  in  possession  of  them, 
can  transfer  the  property  in  the  goods  to  a  bona  fide  purchaser, 
who  obtains  possession  of  the  goods,  and  that  the  title  of  such 
purchaser  will  prevail  against  that  of  the  first  buyer.^^^  In 
England  this  rule  has  been  enacted  by  the  Sale  of  Goods  Act.^®" 
This  doctrine  is  to  be  distinguished  from  the  doctrine  that  re- 
tention of  possession  by  the  seller  is  fraudulent  as  against  the 
seller's  creditors,  and  that  in  such  case  the  sale  can  be  avoided  • 
bv  them/*'^    Both  doctrines  will  be  discussed  later. 


157  Pickering  v.  Busk,  15  East,  38  (permitting  transfer  in  books  of 
wharfinger  from  name  of  seller  to  that  of  broker);  Dyer  v.  Pearson, 
3  Barn.  &  C.  38;  Cole  v.  Bank,  L.  R.  10  C.  P.  354;  Calais  Steamboat 
Co.  V.  Van  Pelt,  2  Black  (U.  S.)  372,  17  L.  Ed.  282  (ijermitting  vessel 
to  be  enrolled  in  name  of  agent);  Nixon  v.  Brown,  57  N.  H.  34  (per- 
mitting agent  to  retain  bill  of  sale  taken  in  his  own  name);  McNeil 
V.  Bank,  46  N.  Y.  325,  7  Am.  Rep.  341  (delivering  to  broker  certificate 
of  stock  indorsed  with  blank  assignment  and  power  of  attorney  pur- 
porting to  be  executed  for  consideration).  Cf.  Knox  v.  American  Co., 
148  N.  Y.  441,  42  N.  E.  9SS,  31  L.  R.  A.  779.  51  Am.  St.  Rep.  700; 
Walker  v.  Railway  Co.,  47  Mich.  338,  11  N.  W.  187;  O'Connor's  Adm'x 
V.  Clark,  170  Pa.  318,  32  Atl.  1029,  29  L.  R.  A.  607. 

158  Biggs  V.  Evans  (1894)  1  Q.  B.  88;  Levi  v.  Booth,  58  Md.  305,  42 
Am.  Rep.  3.32;  Oilman  Linseed  Oil  Co.  v.  Norton,  89  Iowa,  434,  56 
N.  W.  0G3,  48  Am.  St.  Rep.  400. 

rhe  fact  may  have  weight  in  connection  with  other  circumstances 
mdicating  that  the  owner  conferred  actual  authority  on  the  person  to 
whom  the  goods  are  intrusted.  Smith  v.  Clews,  105  N.  Y.  288,  11  N. 
E.  632,  59  Am.  Rep.  502. 

150  Post,  p.  204. 

160  Section  25  (\),  followed  in  Sales  Act,  §  25.     Post,  p.  206. 

161  Post,  p.  200. 


Ji  11)  WHO   CAN    SEIXi.  83 

Same — Bill  of  Lading — Nature  of  Instrument. 

A  bill  of  lading  is  a  writing  signed  on  bclialf  of  the  carrier  to 
whom  goods  are  delivered  for  transportation,  acknowledging 
the  receipt  of  the  goods  and  undertaking  to  deliver  them  at  the 
place  of  destination,  subject  to  such  conditions  as  may  be  men- 
tioned in  the  bill  of  lading.^"^  During  the  transit  the  bill  of 
lading  is  the  symbol  of  the  property,  and  the  indorsement  and 
delivery  of  the  bill  of  lading  operates  as  a  symbolical  delivery 
of  the  goods,  and  by  such  indorsement  and  delivery  the  prop- 
erty in  the  goods  passes,  at  least  if  such  is  the  intention  of  the 
parties.^"' 

A  bill  of  lading  is  not,  however,  a  negotiable  instrument,  like 
a  bill  of  exchange.' °*  At  common  law,  although  the  property  in 
the  goods  can  be  transferred  by  the  indorsement  of  the  bill  of 
lading,  the  contract  created  thereby  cannot,  and  hence  the  in- 
dorsee cannot  sue  in  the  contract  in  his  own  name,'*"*  although 
this  right  of  the  indorsee  to  sue  has  in  many  jurisdictions  been 
conferred  by  statute.'""  As  a  rule  the  transferee  of  the  bill  of 
lading  obtains  no  greater  rights  under  the  instrument  than  his 
transferror  possessed.  When  the  property  in  the  goods  has 
been  transferred  by  an  indorsement  of  the  bill  of  lading  while 
the  goods  are  in  transit,  no  one  is  entitled  to  receive  the  goods 
from  the  carrier  except  the  holder  of  the  bill  of  lading,  and  if 
the  carrier  wrongfully  delivers  the  goods  he  is  liable  to  the 
holder  for  their  conversion."^     Some  courts  hokl,  however, 

182  See  Blackb.  Sales,  275. 

i«3  See  Sanders  v.  Mcl^oan,  11  Q.  B.  Div.  327,  per  Bowon.  L.  J. 

104  See  Shaw  v.  Railroad  Co.,  101  U.  S.  557,  25  L.  Ed.  81)2. 

105  Thompson  v.  Dominp,  14  Mees.  &  W.  403. 

IOC  See  St.  18  &  19  Vict.  c.  Ill;  Shaw  v.  Railroad  Co.,  101  U.  S. 
557.  25  I..  Ed.  802. 

107  Forbes  v.  Railroad  Co.,  133  Mass,  154;  First  Nat.  Bank  v. 
Railroad  Co..  58  N.  H.  203;  Union  Pac.  Ry.  Co.  v.  Johnson.  45  Neb. 
57.  (W  N.  W.  144,  .50  Am.  St.  Rep.  540.  See.  also.  North  Pennsylvania 
R.  Co.  V.  Bank,  123  U.  S.  727,  8  Sup.  Ct.  200,  31  L.  Ed.  2S7;  Walters 
V.  Railroad.  Co  (C.  C.)  63  Fed.  391;  Furman  v.  Railway  Co..  10«5  N. 
Y.  579.  13  N.  E.  587;  Wright  &  Colton  Wire-Cloth  Co.  v.  Warren.  177 
.Mass.  2S3.  58  N.  E.  1082. 

Bills  of  lading  In  this  country  commonly  provide  that,  unless  de- 
livery Is  to  be  made  to  the  oonsipiiee  "or  order,"  delivery  may  be  made 
without  present:ition  of  the  bill. 

When  a  bill  of  lading  is  drawn  In  a  sot  of  three,  and  two  or  more 

TrrF.SAT,ES(2n  En  "i— S 


34  FORMATION  OF  THE  CONTRACT.         (Ch.  1 

that  the  liability  of  the  carrier  ceases  upon  delivery  of  the  goods 
on  the  order  of  the  consignee,  if  he  is  then  the  rightful  owner, 
notwithstanding  that  the  bill  of  lading  is  not  surrendered,  and, 
consequently,  that  one  to  whom  the  bill  of  lading  is  afterwards 
transferred  for  value  cannot  recover  from  the  carrier  for  a  con- 
version of  the  goods. ^®®  On  the  other  hand,  it  is  held  by  some 
courts,  with  good  reason,  that  it  is  immaterial  that  the  bills  of 
lading  are  negotiated  after  such  delivery,  at  least  if  the  delivery 
was  at  an  intermediate  point,  but  that  the  carrier,  by  permitting 
the  bills  to  remain  outstanding  with  the  appearance  of  live  bills, 
is  estopped  as  against  an  innocent  purchaser  from  showing  that 
he  delivered  the  goods  to  the  shipper,  and  is  liable  for  failure  to 

parts  of  the  bill  are  transferred  to  two  or  more  different  bona  fide 
holders  for  value,  the  property  in  the  goods  passes  to  the  transferee 
who  is  first  in  time.    Barber  v.  Meyerstein,  L.  R.  4  H.  L.  317. 

But  the  carrier  may  safely  deliver  them  to  him  who  first  presents 
one  of  the  parts,  provided  the  carrier  acts  in  good  faith  and  with- 
out notice  of  any  prior  claim.  Glynn,  Mills  &  Co.  v.  East  &  West 
India  Docks,  7  App.  Cas.  591. 

A  shipper  drew  against  his  consignment  for  sale  upon  the  con- 
signees, with  whom  his  account  was  already  overdrawn,  and  trans- 
ferred the  property,  by  assignment  of  the  duplicate  bills  of  lading,  to 
a  bank,  which  diseovmted  the  drafts.  The  consignees  refused  to  ac- 
cept or  to  pay  the  drafts,  but  afterwards  received  the  property  from 
the  carrier  upon  the  original  bills  of  lading.  Held,  that  the  consignees 
had  no  right  to  apply  the  property,  or  its  proceeds,  in  discharge  of 
the  shipper's  liability  to  themselves  arising  from  other  transactions, 
and  that  the  bank  had  acquired  title  to  each  consignment  to  the  ex- 
tent of  the  draft  discounted  on  security  thereof.  First  Nat.  Bank 
V.  Ege,  109  N.  y.  120,  16  N.  E.  317,  4  Am.  St.  Rep.  431. 

A  holder  of  a  bill  of  lading  who  allows  another  to  get  possession 
of  it,  properly  indorsed,  upon  a  delivery  by  the  carrier  thereunder 
to  such  person  is  estoi)ped  as  against  the  carrier  to  deny  the  legality 
of  the  delivery.  Douglas  v.  Bank,  86  Ky.  176,  5  S.  AV.  420,  9  Am.  St. 
Rep.  276. 

168  National  Commercial  Bank  v.  Transportation  Co.,  .59  App.  Div. 
270,  69  N.  Y.  Supp.  396,  affirmed  172  N.  Y.  596,  64  N.  E.  1123;  Mairs 
V.  Railroad  Co.,  73  App.  Div.  265,  76  N.  Y.  Supp.  838. 

Delivery  of  goods  by  a  carrier  on  order  of  the  consignee,  without 
presentation  of  the  bill  of  lading,  to  one  who  has  paid  the  consignee 
therefor,  vests  title  in  him  as  against  one  to  whom  after  such  delivery 
the  consignee  transfers  the  bill.  Anchor  Mill  Co.  v.  Railroad  Co.,  102 
Iowa,  262,  71  N.  W.  255. 


§  11)  WHO   CAN    SKI.L.  .'{."i 

deliver  to  the  holder  of  the  hill.'"''  A  thief,  or  a  finder  of  a 
hill  <jf  ladin*;  riniiiiii|:f  to  hearer  or  indursed  in  hlank,  cannot 
confer  title  upon  an  innocent  purchaser.*'" 

In  some  states  statutes  have  heen  enacted  declaring  bills  of 
lading  to  he  negotiable,  by  indorsement  ami  delivery  in  the 
same  maimer  as  hills  of  exchange ;  but  they  have  generally 
been  strictly  construed,  and  have  had  little  effect  in  putting 
bills  of  lading  on  the  footing  of  hills  of  exchange. *''  Similar 
statutes  have  been  passed  in  many  states  in  respect  to  ware- 
house receipts,  and  they  have  generally  been  construed  with 

100  I'nioii  I'ae.  R.  Co.  v.  Johnson,  45  Neb.  'u,  G3  N.  W.  144.  ')0  Aui. 
St.  U<'p.  r>4<»;  Hatzer  v.  Kaihvay  Co.,  t;4  Minn.  24."),  tXi  N.  W.  ;)S.S,  .".8 
Am.  St.  Kep.  7,:'A).  See,  also.  Ityan  v.  Railway  Co.,  IK)  Minn.  1L\  «.».'> 
X.  W.  T.'.S. 

i7o(;urnoy  v.  Helirend,  3  Kl.  &  Hi.  {V22:  Hrower  v.  IVabody.  13  N. 
Y.  r_Mi.  Whore  the  issue  of  a  hill  of  ladinj:  Is  procuri-d  by  fraud 
upon  the  owner,  such  that  the  pmperty  in  the  goods  does  not  pass, 
a  bona  tide  transferee  acquires  no  title.  Dows  v.  Perrin,  10  N.  Y. 
32,-). 

I'J  Shaw  V.  Railroad  Co.,  101  U.  S.  5r)7,  2.->  L.  l-:*!.  S<>2;  National 
Bank  of  Counneree  v.  Railroad  Co.,  44  Minn.  224,  40  N.  \V.  5«M>,  1)  L. 
R.  A.  2r)3,  20  Am.  St.  Rep.  500.  See  Greenbauiu  v.  Megibben.  73  Ky. 
41!J;  First  Nat.  Hank  v.  Boyee,  78  Ky.  42,  39  Am.  Rep.  1'.>S;  Wall  v. 
Schneider,  .5t»  Wis.  352,  18  N.  W.  443,  48  Am.  Rep.  .520;  Onnmercial 
Bank  v.  Hurt.  DO  Ala.  130.  12  South.  .50S,  1«J  L.  R.  A.  7ol.  42  Am.  St. 
Rep.  3S;  Dolliff  v.  Robbins,  8:^  Minn.  41>8,  80  N.  W.  772,  85  Am.  St. 
Rep.  400. 

"They  are.  in  oommerce.  a  very  different  thing  fmrn  bills  of  ex- 
change and  promis.sory  notes,  answering  a  different  puritose  and  per- 
forming different  functions.  It  cannot  be.  therefore,  that  the  statute 
which  made  them  negotiable  by  indorsement  and  delivery,  or  negotia- 
ble in  the  same  manner  as  bills  of  exchange  and  pnmiissory  notes  are 
negotiable,  intendeil  to  change  totally  their  character,  put  them  in  all 
resiRH-ts  on  the  footing  of  instruments  which  are  the  representatives 
of  money,  and  charge  the  negotiation  of  them  with  all  the  conse- 
quences which  usually  attend  or  follow  the  negotiation  of  bills  and 
notes.  Some  of  these  consetpuMices  would  be  very  strange,  If  not  im- 
possible. Such  as  the  liability  of  indorsers.  the  duty  of  demand  n«l 
diem,  notice  of  nondeliv«'ry  by  the  carrier,  etc..  or  the  hiss  of  the  own- 
er's property  by  the  fraudulent  assignment  of  a  thief.  If  these  were 
intendtnl.  surely  the  statute  would  have  said  something  more  than 
merely  make  them  negotiable  by  indorsement.  No  statute  is  to  be 
construed  as  altering  the  ctimmon  law.  farther  than  its  words  im- 
port." Shaw  V.  Railroad  Co.,  supra.  But  see  Tiedemau  v.  Knox,  53 
Md.  012. 


36  FORMATION  OF  THE  CONTRACT.         (Ch.  1 

like  efifect.^^^  A  radical  change  in  the  law  governing  negotiable 
documents  of  title  is  made  by  the  proposed  Sales  Act,  which 
largely  adopts  the  mercantile  view  of  these  instruments  and  fol- 
lows the  analogy  of  bills  and  notes. ^'^^ 

Same — Sale  by  Person  in  Possession  of  Bill  of  Lading. 

Whether  a  person  to  whom  the  possession  or  custody  of  a 
negotiable  bill  of  lading  has  been  intrusted  by  the  owner,  where 
the  bill  has  been  indorsed  to  such  person,  or,  if  running  to 
bearer  or  indorsed  in  blank,  has  been  delivered  to  him,  can 
confer  upon  a  bona  fide  purchaser  a  better  title  than  such  person 
possessed,  is  a  question  on  which  the  decisions  in  this  country 
are  not  in  accord. 

In  England,  it  seems  that,  except  for  the  purposes  of  the 
Factors'  Act  ^''*  and  of  defeating  the  right  of  stoppage  in 
transitu,^ "^  he  cannot,  but  that  the  bill  of  lading  can  only  be 
negotiated  subject  to  all  the  equities  attaching  to  it.^^"  There 
the  effect  of  the  indorsement  depends  upon  the  particular  cir- 
cumstances of  the  indorsement,  which  does  not  necessarily  pass 
the  legal  property  in  the  goods.^^'^  "The  possession  of  bills  of 
lading  or  other  documents  of  title  to  goods  did  not  at  com- 
mon law  confer  on  the  holder  of  them  any  greater  power  than 
the  possession  of  the  goods  themselves.    The  transfer  of  a  bill 

172  Shaw  V.  Railroad  Co.,  101  U.  S.  557,  25  L.  Ed.  892;  Ins.  Ck).  v. 
Kiger,  103  U.  S.  352,  26  L.  Ed.  433;  Security  Bank  v.  Storage  Co., 
55  ]Minn.  107,  56  N.  W.  582 ;  Commercial  Bank  v.  Hurt,  99  Ala.  140, 
12  South.  568,  19  L.  R.  A.  701,  42  Am.  St.  Rep.  38 ;  Commercial  Bank 
V.  Lee,  99  Ala.  496.  12  South.  572,  19  L.  R.  A.  705. 

Many  states  have  statutes  declaring  warehouse  receipts  to  be  nego- 
tiable. See  Price  v.  Insurance  Co.,  43  Wis.  267,  281 ;  Greenbaum 
V.  Megibben.  10  Bush  (Ky.)  419;  Farmer  v.  Etheridge,  24  Ky.  Law 
Rep.  649,  69  S.  W.  761 ;  DollifE  v.  Bobbins,  S3  Minn.  498,  86  N.  W. 
772.  85  Am.  St.  Rep.  406 ;  Lewis  v.  Bank,  46  Or.  182,  78  Pac.  990. 

Important  changes  are  introduced  by  the  proposed  Warohouse  Re- 
ceipts Act,  recommended  by  the  Commissioners  on  Uniform  State 
Laws,  and  in  1907  enacted  in  Connecticut,  Illinois  (with  some  modi- 
fications), Iowa,  Massachusetts,  New  Jersey,  and  New  York;  post, 
p.  273. 

17  3  Sections  27^0. 

174  Post,   p.   38. 

17  5  Post,  p.  333. 

17  8    Chalmers,   Sale  of  Goods  Act  (6th  Ed.)   166. 

17  7  Sewell  V.  Burdick.  10  App.  Cas.  74. 


§  11)  WHO    CAN    SKLL,  37 

of  lading-  of  p:oods  in  transitu  had  the  same  effect  in  defeat- 
ing the  unpaid  vendor's  right  to  stop  in  transitu  that  an  actual 
delivery  of  the  goods  themselves  under  the  same  circumstances 
would  have  had.  But  the  transfer  of  the  documents  of  title 
hy  means  of  which  the  actual  possession  of  the  goods  could  be 
obtained  had  no  greater  effect  at  common  law  than  the  trans- 
fer of  the  actual  possession."  ^^*  It  is  to  be  observed,  however, 
that  if  the  holder  of  the  bill  of  lading  has  the  property  in  the 
goods,  although  he  has  obtained  it  by  fraud,  he  has  a  voidable 
title,  and  can  give  good  title  by  indorsement  of  the  bill  of  lad- 
ing to  an  innocent  purchaser  before  the  defrauded  owner  has 
disaffirmed.*'" 

In  this  country,  also,  the  rule  appears  to  be  that  the  title  does 
not  necessarily  pass  by  the  indorsement  or  transfer  of  a  nego- 
tiable bill  of  lading,^®"  and  in  some  jurisdictions  it  is  held  that 
evidence  is  admissible  to  show  that  it  was  the  intention  to  re- 
tain title  even  as  against  bona  fide  purchasers.*®*  On  the  other 
hand,  decisions  are  not  wanting  which  adopt  the  mercantile 
view,  and  which  hold  that  a  person  to  whom  a  bill  of  lading, 
negotiable  in  form,  has  been  indorsed  and  delivered,  or,  if  run- 
ning to  bearer  or  indorsed  in  blank,  has  been  delivered,  by  or 
with  the  consent  of  the  owner  of  the  goods,  is  so  far  invested 
with  the  appearance  of  ownership  that  the  owner  will  be  es- 
topped from  asserting  title  as  against  a  bona  fide  purchaser 
of  the  bill  of  lading  to  whom  such  person  has  dulv  negotiated 
it.*^- 

178  Cole  V.  Northwestern  Rank.  L.  R.  10  C.  V.  y."4.  per  Blaok- 
burn.  J. 

i"»  The  Argentina,  1  Adin.  370. 

180  Post,  p.  172. 

181  See  The  Carlos  F.  Rcses,  177  U.  S.  0.'>n,  20  Sup.  Ct.  803.  44  Tj. 
E(l.  020;  Nehno.vor  Lumber  Co.  v.  Railroad  Co..  .>4  Neb.  321.  74  X.  W. 
•  mO,  40  L.  R.  A.  rm\  Washl>urn-Crosby  Co.  v.  Itailroad  Co..  ISO  Mas?. 
2,^.2,  02  N.  E.  590.  Cf.  Moors  v.  Drury.  180  Mass.  424.  71  N.  E.  SIO; 
post.  p.  172. 

182  Pollard  V.  Reardon,  65  Fed.  848,  V.i  C.  C.  A.  171;  Munroe  v. 
Warehouse  Co.  (C  C.)  75  Fed.  ."45;  Commercial  Rank  v.  Armsl)y  Co., 
120  Ga.  74.  47  S.  E.  589,  G5  L.  R.  A.  443;  Third  Nat.  Rank  v.  Smith. 
107  Mo.  App.  178.  81  S.  W.  215;  National  Rank  v.  Railroad  Co.,  W 
Md.  rm.  59  Atl.  U4.  105  Am.  St.  Rep.  321.     See  Sales  Act,  §  33. 


38  FORMATION  OF  THE  CONTRACT.         (Cll.  1 

Factors'  Acts. 

At  common  law,  when  the  principal  intrusts  goods  to  a 
factor  for  sale,  the  factor  may  sell  in  his  own  name,  and, 
unless  the  buyer  has  notice  of  some  limitation  upon  the  au- 
thority, the  agent  has,  as  against  him,  the  customary  powers  of 
a  factor,  such  as  fixing  the  price  and  selling  on  credit.^^^  On 
the  other  hand,  although  the  goods  are  intrusted  to  the  posses- 
sion of  a  factor,  unless  they  are  intrusted  for  sale,  the  factor 
has  no  power  to  sell  them,  and  one  who  buys  in  reliance  upon 
his  apparent  ownership  is  not  protected. ^^'^  Moreover,  at  com- 
mon law  a  factor  intrusted  with  possession  has  no  power  to 
pledge  as  security  for  his  own  debt.^^^  To  afford  protection 
to  persons  dealing  with  factors  and  other  agents  intrusted  with 
the  possession  of  goods,  or  of  the  documents  of  title  to  goods, 
factors'  acts  have  been  enacted  in  many  jurisdictions.  Speaking 
of  the  latest  English  Factors'  Act  (1889),  Judge  Chalmers 
says :  It  "is  a  partial  application  to  English  law  of  the  French 
maxim,  'En  fait  de  meubles  possession  vaut  titre.'  The  pres- 
ent act  is  the  result  of  a  long  struggle  between  the  mercantile 
community  on  the  one  hand  and  the  principles  of  common  law 
on  the  other.  The  general  rule  of  the  common  law  was,  'Nemo 
dat  quod  non  habet,'  and  it  was  held  that  the  mere  possession  of 
goods  or  documents  of  title  to  the  goods  did  not  enable  him  to 
dispose  of  those  goods  in  contravention  of  his  instructions  with 
respect  to  them.  The  merchants  and  bankers  contended  that,  in 
the  interest  of  commerce,  if  a  person  was  put  or  left  in  the 
possession  of  goods  or  documents  of  title,  he  ought,  as  regards 
innocent  third  parties,  to  be  treated  as  the  owner  of  the 
goods."  ^^® 

Same — In  England. 

The  early  English  Factors'  Act  of  1825  (St.  6  Geo.  IV,  c. 
94)  ^*'  has  been  to  a  great  extent  the  model  of  the  various 

183  See  Tiffany,  Ag.  222. 

184  Ante,  p.  31. 

isspaterson  v.  Task,  Strange,  1178;  Wanier  v.  Martin,  11  How. 
(U.  S.)  200,  13  L.  Ed.  GG7 ;  Allen  v.  Bank,  120  U.  S.  20,  7  Sup.  Ot. 
460,  30  L.  Ed.  573.     Or  to  barter.     Tiffany,  Ag.  223. 

186  Chalmers,  Sale  of  Goods  Act  (6th  Ed.)  132. 

187  An  earlier  act  was  passed  in  1823  (St.  6  Geo.  IV,  c.  83). 


S  11)  WHO    CAN    SKI.L.  39 

enactments  on  the  same  subject  in  the  L'nitcd  States.  The  sec- 
ond section  provided  that  any  person  "intrusted  with  and  in 
l)t)ssession  of  any  bill  of  ladinsj,  India  warrant,  dock  warrant, 
warehouse  keeper's  certificate,  wliarfiuji^cr's  certificate,  warrant 
or  order  for  the  delivery  of  goods,  shall  \)c  deemed  and  taken 
to  be  the  true  owner  *  *  *  of  the  goods  ♦  ♦  ♦  men- 
tioned in  said  several  documents  *  *  ♦  jq  far  as  to  give 
validity  to  any  contract"  made  by  him  with  any  other  person 
for  the  sale  or  disposition  of  the  goods,  or  for  the  deposit  or 
pledge  thereof  as  security  for  advances  made  upon  the  faith 
of  such  several  documents,  or  either  of  them ;  provided,  such 
person  had  not  notice  that  the  person  so  intrusted  was  not  the 
actual  and  bona  fide  owner  of  the  goods.  This  made  an  im- 
portant alteration  in  the  law%  by  giving  to  the  possessor  of  bills 
of  lading  or  other  documents  of  title  power  of  selling  or  pledg- 
ing the  goods  beyond  any  which,  either  by  the  common  law  or 
by  any  other  section  of  the  act,  the  possession  of  the  goods 
themselves  conferred.^^*  It  is  to  be  observed  that  it  was  only 
persons  who  dealt  with  the  person  in  possession  upon  the  faith 
of  the  documents,  in  the  belief  that  he  was  owner,  who  were 
protected.^ ^°  The  fourth  section  provided  that  purchasers  from 
any  agent  "intrusted  with  any  goods,  wares  and  merchandise," 
or  to  whom  the  same  might  be  consigned,  should  be  protected 
in  their  purchases,  notwithstanding  notice  that  the  seller  was 
agent,  provided  that  the  purchase  and  payment  were  made  in 
the  usual  course  of  business,  and  the  buyer  had  not  notice  of  the 
absence  of  authority  of  the  agent.  By  St.  5  &  6  Vict.  c.  39 
(1842),  the  act  was  so  amended  as  to  give  the  same  effect  to 
the  possession  of  the  goods  as  to  that  of  documents  of  title, 
and  it  was  provided  that  any  agent  intrusted  with  the  possession 
of  either  was  to  be  deemed  the  true  owner,  so  as  to  give  validity 
to  any  bona  fide  contract  by  way  of  pledge,  with  the  im- 
portant change  that  such  contract  should  be  binding  upon  the 
owner,  notwithstanding  that  the  pledgee  had  notice  that  the 
person  with  whom  the  agreement  was  made  was  only  an  agent. 
These  acts  applied  solely  to  persons  intrusted  as  factors  or  com- 

i»8  Kv.Tiis.  Ar.  41«5. 

181' iMiillips   V.   Iluth,  6  Mees.  &  W.  572;    Hatfleld  v.  riiillips.  9 
Mees.  &  W.  U47. 


40  FORMATION  OF  THE  CONTRACT.         (Ch.  1 

mission  merchants,  and  not  to  persons  to  whose  employment 
authority  to  sell  is  not  ordinarily  incident;  for  example,  a 
wharfinger.^  ^°  They  were  limited  in  their  scope  to  mercantile 
transactions,  and  did  not  embrace  sales  of  furniture  or  of  goods 
in  possession  of  a  tenant  or  bailee  for  hire.^^^ 

It  might  be  supposed  that  the  effect  of  these  enactments 
would  be  such  that,  if  the  owner  of  goods  intrusted  their  pos- 
session or  the  documents  of  title  to  a  person  who  from  the 
nature  of  his  employment  might  be  taken  prima  facie  to  have 
the  right  to  sell,  a  pledge  by  such  a  person  to  one  who  was 
without  notice  of  the  absence  of  authority  would  bind  the  true 
owner.  Nevertheless,  under  St.  5  &  6  Vict.  c.  39,  it  was  held 
that  the  agent  must  be  actually  intrusted  at  the  time  of  the 
pledge,  and  that  if  the  authority  had  been  withdrawn,  although 
the  pledgee  was  ignorant  thereof  and  acted  in  good  faith,  and 
the  agent  remained  in  possession,  the  pledgee  was  not  protect- 
g(j_i92  q^Q  constitute  a  person  "an  agent  intrusted  with  the  pos- 
session," he  must  have  been  intrusted  in  the  character  of  such 
agent;  that  is,  for  the  purpose  of  sale.^'*^  The  acts  did  not 
cover  the  case  of  a  seller  left  in  possession,^'''*  or  of  a  buyer  left 
in  possession,^  ^^  so  as  to  defeat  the  rights  of  an  unpaid  seller. 

In  1877  by  St.  40  &  41  Vict.  c.  39,  the  law  was  amended  by 
providing  that  a  secret  revocation  of  agency  should  not  be  op- 
erative, and  the  scope  of  the  earlier  acts  was  extended,  so  as 
to  provide  in  effect  that  a  seller  left  in  possession  of  the  docu- 
ments of  title,  or  a  buyer  obtaining  possession  of  such  docu- 
ments without  title,  could  make  a  valid  sale  or  pledge  to  one 
taking  without  notice   of  the  prior   sale,   or   of  the   original 

190  Monk  V.  Wbittenbury.  2  Barn.  &  Adol.  484;  Wood  v.  Rowcliffe, 
6  Hare,  183;  Lamb  v.  Attenborougb,  1  Best  &  S.  831;  Jaullery  v. 
Britten,  4  Bing.  N.  C.  242;    Hellings  v.  Russell,  33  L.  T.  (N.  S.)  380'. 

isiLoeschman  v.  Macbin,  2  Starkie,  311;  Cooper  v.  AVillomatt,  1 
C.  B.  672. 

192  Fueutes  v.  Montis,  L.  R.  4  C.  P'.  93.  See,  also,  Sbeppard  v. 
Union  Bank.  7  Hurl.  &  N.  GGl. 

193  Cole  V.  Nortbwestern  Bank,  L.  R.  9  C.  P.  470,  affirmed  L.  R. 
10  C.  P.  354:  Jobnson  v.  Credit  Lyonnais  Co.,  2  C.  P.  Div.  224,  af- 
firmed 3  C.  P.  Div.  32;    Biggs  v.  Evans  (1894)  1  Q.  B.  88. 

194  Jobnson  v.  Credit  Lyonnais  Co.,  2  C,  P.  Div.  224. 

196  Jenkyns  v.  Usborne,  7  Man.  &  G.  678;  McEwan  v.  Smith,  2  H. 
L.  Cas.  309. 


§   11)  WHO    CAN    SKI.I-.  41 

seller's  rig;-lits,  as  the  case  might  be.  In  1S80  was  passed  an 
act  to  amend  and  consolidate  the  factors'  acts  (St.  52  &  53  Vict, 
c.  45),  which  embodied  the  changes  made  by  the  act  of  1877, 
and  made  vahd  sales  and  pledges  by  sellers  and  buyers  in  pos- 
session, as  well  of  the  gootls,  as  of  the  documents  of  title."" 

It  is  to  be  observed  that  the  latter  changes,  by  extending  the 
operation  of  the  acts  to  sellers  and  buyers  in  possession,  in- 
cludes a  new  class  of  persons,  not  embraced  in  the  earlier  acts ; 
the  earlier  acts  being  confined  to  factors."^ 

Same — In  the  United  States. 

Factors'  acts  have  been  passed  in  many  states.'"*'  Owing  to 
their  varying  provisions,  only  that  of  New  York,  which  has 
been  followed  in  some  other  states,  will  be  considered.  This 
act  was  passed  in  1830,  and  was,  with  some  modifications,  based 
on  St.  G  Geo.  IV,  c.  94:.''"'  It  provides  in  section  3  that  "every 
factor  or  other  agent,  intrusted  with  the  possession  of  any  bill 
of  lading,  custom-house  permit,  or  warehouse  keeper's  receipt 
for  iho  delivery  of  any  such  merchandise,-'"'  and  every  such 

100  Roproduced,  with  modification,  In  Sale  of  (Joods  Act,  §  2."). 
See  Lee  v.  Butler  (ISOH).  2  Q.  B.  .?18  (cf.  Helhy  v.  ^fnttliews  [1805] 
App.  Cas.  471):  Calin  v.  I'ockctfs.  ot(\.  Co.  nsii'.H  1  Q.  H.  (U:'.. 

lOT  Sale  of  Goods  Act,  §  25  (1),  is  followed  by  the  proposed  Ameri- 
can Sales  Act,  §  25.  Post,  p.  200.  But  section  25  (2)  of  the  Englisli 
Act.  providing  that  the  buyer  in  possession  can  transfer  title,  is 
omitted. 

108  Kentucky,  Act  May  5,  18S0,  Laws  1880,  p.  200.  c.  1541.  Maine 
Rev.  St.  c.  31.  Maryland.  Code  Pub.  Gen.  Laws  18.S8.  art.  2.  Massa- 
chusetts. Rev.  Laws  1902.  c.  GS  (construing  the  Massachusetts  act), 
Nickerson  v.  Darrow.  5  Allen  (Mass.)  419;  Stollenwerck  v.  Tha-her, 
115  Mass.  224;  Thacher  v.  Moors,  134  Mass.  150;  Goodwin  v.  Trust 
Co..  152  Mass.  189,  25  N.  E.  100;  Pl-entice  Co.  v.  Page,  ir>4  Ma*. 
270,  41  N.  E.  279;  Cairns  v.  Page,  1G5  Mass.  552,  43  N.  R  503.  New 
York.  Rev.  St.  (0th  Ed.)  p.  2000.  Ohio  Rev.  St.  1890,  §§  3214-3220. 
Pennsylvania,  P.  &  L.  Dig.  pp.  2027-2029.  Rhode  Island,  Gen.  Laws 
1800.  c.  158.     Wisconsin,  St.  1S08.  §§  3345,  .3340. 

100  See  Stevens  v.  Wilson.  G  Hill  (N.  Y.)  512;  Id.,  3  Deiiio  rX.  Y.) 
472;   Allen  v.  Bank,  120  U.  S.  20.  7  Sup.  Ct.  4G0.  30  L.  Ed.  573. 

200  Referring  to  section  1:  "EA-ery  person  in  whose  name  any  mer- 
chandise shall  be  shipped";  i.  e.,  any  merchandise  shipped  in  the 
name  of  the  factor  or  agent.  Cartwright  v.  Wilmerding.  24  N.  Y. 
521.  527;  Zachrisson  v.  Ahman.  2  Sandf.  (N.  Y.)  GS;  Bonito  v. 
Mosquera,  2  Bosw.  (N.  Y.)  401;  First  Nat  Bank  v.  Shaw,  Gl  N.  Y. 
283. 


42  FORMATION    OF   THE    CONTRACT.  (Ch.  1 

factor  or  agent,  not  having  the  documentary  evidence  of  title, 
who  shall  be  intrusted  with  the  possession  of  any  merchandise 
for  the  purpose  of  sale,  or  as  a  security  for  any  advances  to  be 
made  or  obtained  thereon,  shall  be  deemed  to  be  the  true  owner 
thereof,  so  far  as  to  give  validity  to  any  contract  made  by  such 
agent,  with  any  other  person,  for  the  sale  or  disposition  of  the 
whole  or  any  part  of  such  merchandise,  for  any  money  ad- 
vanced, or  negotiable  instrument  or  other  obligation  in  writing, 
given  by  such  other  person  upon  the  faith  thereof."  The  words 
"upon  the  faith  thereof"  are  to  be  referred  to  the  words  "shall 
be  deemed  to  be  the  true  owner  thereof."  In  other  words,  the 
statute  does  not  afford  protection  to  one  who  knows  that  he  is 
not  dealing  with  the  true  owner.^'^^  "The  object  of  the  statute 
was  to  protect  innocent  persons  who  deal  in  reliance  upon  ap- 
parent ownership,  resting  upon  possession  either  of  the  mer- 
chandise itself  or  documentary  evidence  of  ownership."  ^''- 
The  act  thus  differs  materially  from  the  later  English  acts,  in 
which  the  protection  extends  to  those  dealing  with  the  agent, 
notwithstanding  knowledge  that  he  is  such,  provided  they  are 
without  notice  that  he  is  exceeding  his  authority.^°^ 

The  protection  of  the  act  is  extended  to  persons  dealing  with 
(1)  a  factor  or  other  agent  intrusted  with  the  bill  of  lading  or 
other  document,  or  (2)  a  factor  or  other  agent  who  is  intrusted 
with  the  possession  of  the  merchandise  "for  the  purpose  of  sale 
or  as  security  for  any  advances  to  be  made  or  obtained  there- 
on." Under  the  first  branch  the  agent  must  have  the  docu- 
mentary evidence  of  title  in  his  name.^°*    This  must  be  a  bill  of 

201  Stevens  v.  Wilson.  6  Hill  (N.  Y.)  512;  Covell  v.  Hill,  6  N.  Y. 
374;    Rowland  v.  Woodruff,  60  N.  Y.  73. 

This  construction  was  disapproved  under  a  similar  act  in  Wis- 
consin, Price  V.  Insurance  Co.,  43  Wis.  267.  Cf.  Allen  v.  Bank,  120 
U.  S.  20,  7  Sup.  Ct.  460,  30  L.  Ed.  573. 

202  Per  Vann,  J.,  in  New  York  Security  &  Trust  Co.  v.  Lipman, 
157  N.  Y.  .551,  52  N.  E.  595. 

203  Navulshaw  v.  Brownrigg.  1  Sim.  (N.  S.)  573;  Vickers  v.  Hertz, 
L.  R.  2  H.  L.  Sc.  113.  See  Factors'  Act  1889  (St.  52  &  53  Vict.  c. 
45)  §  2. 

20*  First  Nat.  Bank  v.   Shaw,  61  N.  Y.  283. 

It  seems  that  the  document  must  be  intrusted  "for  the  purpose  of 
sale,"  etc.  Cartwright  v.  Wilmerding,  24  N.  Y.  521,  528.  Cf. 
Price  V.  Insurance  Co.,  43  Wis.  267. 


J$   11)  WHO   CAN    SKLL.  43 

lading-,  custoni-liou.se  permit,  or  warcliousc  keeper's  receipt;  "** 
the  act  thus  differing  from  the  later  I'^nglish  acts,  which  have 
included  any  document  used  in  the  ordinary  course  of  husiness 
as  proof  of  tlic  possession  or  control  of  goods,  or  authorizing  or 
purporting  to  authorize  the  possessor  to  transfer  or  receive 
goods  thereby  represented.-"'  Under  the  second  branch  the  in- 
trusting must  be  for  the  purpose  of  sale  or  obtaining  advanc- 
es,-"' here  again  differing  from  the  present  hjiglish  act.^"''  The 
possession  must  be  actual,  and  not  merely  constructive.-"'  In 
either  case,  the  possession  must  be  "intrusted."  The  agent  must 
be  consciously  and  voluntarily  intrusted,  and  the  act  has  no  ap- 
plication to  a  case  where  the  documents  or  the  goods  are  taken 
by  trespass  or  theft,  and  thus  the  possession  is  from  the  begin- 
ning wrongful.-'" 

Sale  under  Voidable  Title. 

"Where  goods  have  been  obtained  by  means  amounting  to 
larceny,  the  thief  has  no  title,  and  can  give  none ;  *  *  * 
but,   where   goods   have  been   obtained   by   fraud,   the   person 

205  Soltau  V.  flcrdau,  119  N.  Y.  380.  2^  N.  E.  Hf^-J,  Hi  \m.  St.  Rep, 
S43.     Cf.  Cartwright  v.  WilnierdiiiK.  24  N.  Y.  ."j21. 

206Vickors  V.  Hertz,  L.  K.  2  II.  L.  Sc.  113.  See  Factors'  Act 
1889  (St.  52-53  Vict.  c.  45)  §  1. 

207  Moors  V.  Kidder,   IOC.  N.  Y.  .32,  12  N.  E.  818. 

208  See  Factors'  Act  1889,  §  2. 

One  employed  on  a  salary  to  jro  alxmt  and  sell  goods  put  into 
his  manual  possession  is  a  person  "intrusted  witli  menliaiidiso  and 
having  authority  to  sell  or  consign  the  same."  within  Tuli.  St.  Mass. 
1882,  c.  71,  §  3.  protecting  one  who  receives  mercliaudiso  from  such 
person,  and  advances  money  tlicroon  in  g<x)d  faith,  believing  hiui 
to  be  the  owner;  the  statute  not  being  conlincd  to  mercantile  agents. 
Cairns  v.  Page,  105  Mass.  .">.")2.  4.3  N.  E.  .503. 

Cf.  Hastings  v.  Pear.><on  (1S92)  1  Q.  B.  02. 

200  Bonito  V.  Mosquera,  2  Bosw.  (N.  Y.)  401;  Ilowland  v.  WoodrufT, 
60  N.  Y.  73. 

2ioKinsey  v.  Leggett.  71  N.  Y.  .387:  Soltau  v.  ricnlau.  119  N.  Y. 
380,  2;^  N.  E.  804.  10  Am.  St.  Hep.  843;  Sage  v.  Luml>er  Co..  4 
App.  Div.  290.  39  N.  Y.  Sui)p.  449,  attinncd  1.58  N.  Y.  072.  .52  N.  E. 
1120.  See.  also.  First  Nat.  Bank  v.  Shaw.  01  N.  Y.  283;  Collins  v. 
Kalli.  20  Hun  (N.  Y.)  240.  attirmed  85  N.  Y.  0.37.  See,  al.so.  Commer- 
cial Bank  v.  Hurt,  99  Ala.  130.  12  South.  508.  19  L.  H.  A.  701,  42 
Am.  St.  Rep.  38;  Commercial  Bank  v.  I^e,  W  Ala.  493,  12  South. 
572,  19  L.  R.  A.  705. 


44  FORMATION    OF   THE    CONTRACT.  (Ch.  1 

who  so  obtains  them  may  have  no  title  at  all,  or  a  voidable 
title,  according  to  the  nature  of  the  transaction.  If  the  nature 
of  the  fraud  be  such  that  there  was  never  a  contract  between 
the  parties,  as,  for  instance,  if  A.  obtains  goods  from  B.  by 
falsely  pretending  to  be  X.,  then  the  person  who  so  obtains 
the  goods  has  no  title  at  all  and  can  give  none.^^^  But  if  the 
person  defrauded  really  intended  to  part  with  the  property  in, 
and  possession  of,  the  goods,  though  induced  to  do  so  by  fraud, 
there  is  a  contract  which  he  may  affirm  or  disaffirm  at  his  elec- 
tion." ^^^  Hence  the  person  who  obtains  the  goods  has  a  void- 
able title,  and  can  give  a  good  title  to  an  innocent  purchaser 
before  the  other  party  has  disaffirmed. ^^^  And  the  same  rule 
prevails  where  the  sale  is  voidable  in  favor  of  creditors.^^* 

SUBJECT-MATTER    OF    SAIiE. 

111/^.  EXISTENCE  AND  OAVNERSHIP.  The  goods  whicli 
form  the  subject-matter  of  a  sale  must  be  in  existence 
and  owned  by  the   seller. 

12.    SALE  OF  FUTURE  GOODS.     Where  the  parties  purport 
to    effect    a    present    sale    of    future    goods — that    is,    of 
goods    to    be    manufactured   or    acquired   by    the    seller 
after   the   making   of    the    contract   of   sale— the    agree- 
ment operates  only  as  a  contract  to  sell  the  goods. 
EXCEPTIONS— (a)    According  to  the  rule  generally  prevail- 
ing in  this  country  a  contract  to  sell  goods  Tehich  have 
a  potential  existence — that  is,   Tvhich  are  the   expected 
product   or  increase  of  something   o-ivned  by  the  seller 
—operates  to  pass  the  property  in  the  goods  upon  their 
coming   into   existence, 
(b)    A  contract  to   sell   goods  not  yet  acquired  by  the   seller 
operates,    according   to    some   authorities,    to   give    the 


211  Higgons  Y.  Burton,  26  Law  J.  Esch.  342;  Hardman  v.  Booth, 
32  Law  J.  EXch.  105;  Ciindy  v.  Lintlsaj%  3  App.  Cas.  459;  post, 
p.    196. 

212  Chalm.  Sale  of  Goods  Act  (6th  Ed.)  61.  See  Clough  v.  London 
&  N.  W.  Ry.  Co.  L.  R.  7  Exch.  2G;   post,  p.  188. 

213  White  V.  Garden,  10  C.  B.  919,  20  Law  J.  C.  P.  166;  Kingsford 
V.  Merry.  25  Law  J.  Exch.  166;  Zoeller  v.  Riley,  100  N.  Y.  102,  2 
N.  E.  388,  53  Am.  Rep.  157;    post,  p.  193. 

See  Sales  Act,  §  24;    Sale  of  Goods  Act.  §  23. 

214  Sleeper  v.  Chapman,  121  Mass.  404;   post,  p.  203. 


§§  llA-13)  SlBJIX'T-MArrKB   OF   SALE.  4^^ 

buyer  an  equitable  lien  or  intcrost  in  tlio  i;ooil«  upon 
their  acquisition  by  the  si-llor;  but  the  dot-trine  it 
doubtful. 

13.  CONTRACT  TO  SELL.  Goodii  not  yet  in  existence  or  ac- 
quired by  the  seller,  or  the  acquisition  of  which  is  de- 
pendent iipon  a  continKcncy  which  may  or  niay  not 
bajipcn,   may  be   the  subject  of  a  contract  to  sell. 

Sale  of  Goods  Jl'liich  have  Ceased  to  Exist. 

From  the  very  definition  of  a  sale,  it  follows  that  there  can 
he  no  sale  without  the  existence  of  the  thin.t^  sold.'-'*"  Accord- 
ingly, if  there  is  an  agreement  for  the  present  sale  of  specific 
goods,  and  the  goods,  unknown  to  the  seller,  have  ceased  to 
exist  at  the  time  of  the  agreement,  the  agreement  is  void.-" 
Thus  in  the  leading  case  of  Ilaslie  v.  Couturier,'-'"  where  a 
bought  note  had  been  signed  for  a  cargo  of  corn  on  a  vessel  not 
yet  arrived,  but  before  the  sale,  and  unknown  to  the  parties,  the 
cargo  had  been  discharged  and  sold  at  an  intermediate  port,  it 

215  Ilastie  V.  Couturier,  9  E.kcIi.  102,  5  II.  L.  Cas.  (!To,  revcrsiii;,'  8 
Exch.  40;  Strit-kland  v.  Turner,  7  Exch.  20S;  Allen  v.  Hainnmud, 
11  Pot  (U.  S.)  03,  y  L.  Ed.  0;53;  Tliouip.^on  v.  Gould,  20  Pick.  (Mass.i 
134;  per  Wilde,  J.,  130;  Rice  v.  Manufacturing  Co.,  2  Cush.  (Mass.) 
SO,  80;  Franklin  v.  Long,  7  Gill  &  J.  <Md.)  407;  Gibson  v.  Pelkio, 
37  Mich.  3S0.  See  Clark,  Cont.  (2d  Ed.)  201.  Partial  loss  does  not 
avoid  the  contract.  The  (luostion  is  whether  the  article  has  been 
so  far  destroyed  as  no  longer  to  answer  the  description.  Barr  v. 
Giltson,  3  Meos.  &  W.  390. 

Where  the  parties  purport  to  sell  goods  which  they  know  t'> 
have  been  destroyed,  the  aureoment  is  void.  Wolf  v.  Di  Lorenzo,  22 
Misc.  Kep.  323,  49  N.  Y.  Supp.  191. 

21 «  Hamilton  v.  Park  &  McKay  Co.,  12.1  Mich.  72,  83  N.  W.  1018. 
See  Sales  Act.  §  7  (1),  following  Sale  of  Goods  Act.  §  G.  Sales  Act, 
§  7  (2),  provides  that  in  case  of  partial  destruction,  or  of  such  de- 
terioration in  quality  as  substantially  to  change  the  character  of 
the  goods,  the  buyer  may  treat  the  sale  (a)  as  avoided,  or  (b)  as* 
transferring  the  pro|)erty  in  the  existing  goods,  or  in  such  as  have 
not  deteriorated,  and  as  binding  him  to  pay  the  full  agreed  price 
If  the  sale  was  indivisilile,  <ir  the  agreed  price  for  the  goods  in 
which  the  property  passes  if  the  sale  was  divisii)le.  Prof.  Williston. 
in  bis  notes  to  tlie  draft  of  the  act.  says  that  this  Is  believetl  to  ex- 
press the  existing  law.  The  English  act  contains  no  such  proviNlon. 
and  .Tudge  Chalmers  intimates  that  such  is  not  the  English  law. 
Chalmers,   Sale  of  Goods  Act  (0th  Ed.)  p.  21. 

aiT  9  Exch.  102,  5  H.  L.  Cas.  073. 


46  FORMATION  OF  THE  CONTRACT.         (Ch.  1 

was  held  in  the  house  of  lords  that  what  the  parties  contem- 
plated was  that  there  was  an  existing"  something  to  be  sold 
and  bought,  and  that,  no  such  thing  existing,  there  was  no  con- 
tract which  could  be  enforced.  The  rule  may  be  based  either 
on  the  ground  of  mutual  mistake  or  on  the  ground  of  impos- 
sibility of  performance.^^^  And  upon  the  latter  ground,  when 
there  is  a  contract  to  sell  specific  goods,  and,  without  the  fault 
of  buyer  or  seller,  the  goods  perish  before  the  property  has 
passed,  the  contract  is  avoided.^^® 

Sale  of  Goods  Not  Owned  by  Seller. 

The  necessity  of  ownership  by  the  seller  of  the  goods  sold 
has  already  been  considered.^^"  It  is  to  be  observed  that  there 
may  be  a  sale  of  an  undivided  share  of  goods;  the  buyer  by 
force  of  the  agreement  becoming  an  owner  in  common  with 
the  owners  of  the  remaining  shares.^ ^^  And  there  may  be  a 
sale  by  one  part  owner  to  another.^ ^^ 

Sale  of  Goods  Not  Yet  in  Existence  or  Acquired. 

A  contract  for  the  sale  of  goods  not  yet  in  existence  or  ac- 
quired by  the  seller  can  obviously  have  no  greater  effect,  as  a 
present  sale,  than  a  contract  for  the  sale  of  goods  that  have 
ceased  to  exist.  Nor  can  a  contract  purporting  to  effect  a  pres- 
ent sale  of  goods  to  be  acquired  operate  so  as  to  pass  the  prop- 
erty in  the  goods  upon  their  acquisition  by  the  seller,  or  have 
any  greater  force  than  a  contract  to  sell.-^^    In  such  case,  there- 

218  Pol.  Cont.  (4th  Ed.)  370.     Cf.  Farrer  v.  Nightingal,  2  Esp.  639. 
«i«  Post,    p.    .309. 

220  Ante,  p.  20. 

221  Post,  p.  147.  See  Sales  Act,  §  6.  And  see  Van  Broeklen  v. 
Smeallie,  140  N.  Y.  70,  35  N.  E.  415. 

222  See  Sales  Act,  §  1. 

223  Lunn  V.  Thornton,  1  C.  B.  379,  14  Law  J.  C.  P.  161;  Gale  V. 
Burnell,  7  Q.  B.  850;  Congreve  v.  Evetts,  10  Exch.  298,  23  Law  J. 
Exch.  273;  Hope  v.  Hayley,  5  El.  &  Bl.  830,  25  Law  J.  Q.  B.  155; 
Chidell  V.  Galsworthy,  6  C.  B.  (N.  S.)  471;  Allatt  v.  Carr,  27  Law 
J.  Exch.  385;  Jones  v.  Richardson,  10  Mete.  (Mass.)  481;  Moody  v. 
Wright,  13  Mete.  (Mass.)  17,  46  Am.  Dec.  70G;  Rice  v.  Stone,  1  Allen 
(Mass.)  566;  Head  v.  Goodwin,  37  Me.  182;  Emerson  v.  Railway  Co., 
67  Me.  387,  24  Am.  Rep.  39;  Williams  v.  Briggs,  11  R.  I.  476.  23  Am. 
Rep.  518;  Gardner  v.  McEwen,  19  N.  Y.  123;  Cressey  v.  Sabre,  17 
Hun  (N.  Y.)  120;  Hamilton  v.  Rogers,  8  Md.  301;  Gittings  v.  Nelson. 
86  111.  591;    Hunter  v.  Bosworth,  43  Wis.  583.     See  Sales  Act,  §  5  (3). 


§§  11^-13)  SUBJECT-MATTER   OF   SALE.  41 

fore,  though  the  contract  be  in  tlic  form  of  a  present  sale,  the 
property  in  the  goods  does  not  pass  to  the  buyer  unless  the  sell- 
er, after  his  acquisition  of  the  goods,  and  bef(jre  the  rights  of 
third  persons,  such  as  bona  fide  purchasers  or  attaching  credit- 
ors, have  intervened,  does  some  act  clearly  showing  his  inten- 
tion of  giving  effect  to  the  original  agreement  and  thereby  ap- 
propriating them  to  the  contract,^-*  or  the  buyer  takes  posses- 
sion of  them  under  autiiority  to  seize,  which  is  equivalent  to 
a  delivery.^-'' 

Potential  Existence. 

If,  however,  the  goods  have  a  "potential  existence,"  as  de- 
fined in  the  first  exception,  the  property  in  them  passes  upon 
their  coming  into  actual  existence.  In  this  way  a  man  may 
sell  the  crop  of  hay  to  be  grown  on  his  field,  the  wool  to  be 
clipped  from  his  sheep  at  a  future  time,  the  milk  that  his  cows 
may  yield  the  coming  month,  but  not  the  wool  of  any  sheep,  or 
the  milk  of  any  cows,  that  he  may  buy  within  the  year.  The 
doctrine,  which  was  declared  in  tlie  early  case  of  Grantham 
v.  Hawley,-*"  is  doubted  by  Judge  Chalmers,  who  justly  says 
that  there  is  no  rational  distinction  between  one  class  of  future 
goods  and  another.^^^  Grantham  v.  Havvley  was  followed  in 
England  in  1846,*-*  but  the  distinction  was  apparently  dis- 
carded by  the  Sale  of  Goods  Act.'--"     In  this  country  the  doc- 

224  Langton  v.  Higsins.  28  Law  J,  Exch.  '27>2.  Cf.  Dextm-  v.  Cur- 
tis. 91   Me.  505,  40  Atl.  54;). 

--'-  Congreve  v.  Evetts,  10  Exch.  208.  23  I*iw  J.  R\ch.  27:'.;  Hope  v. 
Hayley,  5  El.  &  BI.  8;50.  25  Law  J.  Q.  B.  155;  Chidell  v.  (Jalsworthy, 
ti  C.  B.  (N.  S.)  471;  Allatt  v.  Carr,  27  Law  J.  Exch.  385;  Kowan  v. 
Manufacturing  Co.,  20  Conn.  283;  Rowley  v.  Kice,  11  Moto.  (Mass.) 
333;  Chase  v.  Denny,  1.30  Mass.  500;  Cook  v.  Cortliell,  11  H.  I.  482. 
23  Am.  Rep.  518;  Chapman  v.  Weimer.  4  Ohio  St.  4S1;  McCaffrey 
V.  Wootlin,  65  N.  Y.  4.59,  22  Am.  Rep.  044.  See.  also,  cases  cited 
In  preceding  note.  Contra:  Allen  v.  Goodnow,  71  Me.  420;  DtHTinp 
V.  Cobb,  74  Me.  334.  43  Am.  Rep.  59<k  As  to  the  revocabiliry  of  the 
license  to  seize:  Chynoweth  v.  Tenney,  10  Wis.  397;  McCaffrey  v. 
Woodin,  supra;  Jones,  Chat.  Mortg.  (3d  Ed.)  §  105  et  seq. 

228  Hob.  132.  See,  also.  Robinson  v.  MacUonnell,  5  Maule  &  S. 
228;  14  Vin.  Abr.  tit  "Grant."  p.  50;  Shep.  Touch,  "Grant."  241; 
rerk.  S§  05,  90.    See,  also.  Foster's  Case,  1  Leon.  42. 

227  Chalm.  Sale  of  Goods  Act  (Oth  Ed.)  20. 

32«  Petch  V.  Tutin,  15  Mees.  &   \V.   110. 

220  Section  5  (3).     Sales  Act,  §  5  (3|,  follows  the  English  net 


48  FORMATION    OF   THE   CONTRACT.  (Ch.  1 

trine  has  been  very  generally  recognized.  Thus  it  has  been 
held  that  a  man  may  sell  the  crops  to  be  sown  on  his  land,^^'' 
or  the  future  offspring  of  his  animals,^^^  or  cheese  to  be  made 
from  the  milk  of  his  cows.'^^  The  cases  as  a  rule  are  those 
involving  chattel  mortgages.^^^  Some  cases  confine  the  doc- 
trine to  the  spontaneous  product  or  increase  of  that  which  is 
already  in  existence,^^*  and  many  courts  refuse  to  apply  it 
to  crops  not  yet  sown.^^^ 

Rule  in  Equity. 

In  equity,  which  treats  as  done  what  ought  to  be  done,  an 
agreement  for  value  purporting  to  mortgage  personal  property 
afterwards  to  be  acquired,  provided  it  is  sufficiently  described 
to  be  identified,  gives  the  mortgagee  a  lien  upon  the  property 
as  soon  as  it  is  acquired.^^^     But  it  is  only  an  equitable  lien, 

2  30  senter  v.  Mitchell  (G.  C.)  16  Fed.  206;  Dickey  v.  Waldo,  97 
Mich.  2.55,  56  N.  W.  608,  23  L.  R.  A.  449  (peaches  to  be  grown  on 
seller's  trees);  Hall  v.  Glass,  123  Gal.  500,  56  Pac.  336,  69  Am.  St. 
Rep.  77. 

231  Hull  V.  Hull,  48  Gonn.  250,  40  Am.  Rep.  165;  McCarty  v. 
Blevins,  5  Yerg.  (Tenn.)  195,  26  Am.  Dec.  262  (during  gestation). 
Contra:  Battle  Greek  Valley  Bank  v.  Bank,  62  Neh.  825,  88  N.  W. 
145,  56  L.  R.  A.  124.  And  see  Bates  v.  Smith,  83  Mich.  347,  47  N. 
W.  249. 

232  Conderman  v.  Smith,  41  Barb.  (N.  Y.)  404;  Van  Hoozer  v. 
Gory,  34  Barb.  (N.  Y.)  9. 

233  The  rule  is  affected  in  many  states  by  the  laws  governing  re- 
cording  and  delivery.     Post,   p.    137. 

234  A  valid  mortgage  cannot  be  given  on  bricks  to  be  made  from 
clay  in  the  seller's  land.  T.  B.  Townsend  Brick  &  G.  Go.  v.  Allen, 
62  Kan.  311,  62  Pac.  1008.  52  L.  R.  A.  .323,  84  Am.  St.  Rep.  388;; 
See,  also,  Rochester  Distilling  Go.  v.  Rasey,  142  N.  Y.  570,  37  N. 
E.  632.  40  Am.   St.  Rep.  635. 

235  Hutchinson  v.  Ford,  9  Bush  (Ky.)  318,  15  Am.  Rep.  711;  Corn- 
stock  V.  Scales,  7  Wis.  159.  Contra:  Cole  v,  Kerr,  19  Neb.  553,  26 
N.  AV.  598;  Dierson  v.  Petersmeyer,  109  Iowa,  233,  80  N.  W.  389'; 
Merchants'  «fe  Mechanics'  Sav.  Bank  v.  Holdredge,  84  Wis.  601,  55 
N.  W.  108.  See  also  T.  B.  Townsend  Brick  &  Contracting  Go.  v. 
Allen,  62  Kan.  311,  62  Pac.  1008,  52  L.  R.  A.  323,  84  Am.  St.  Rep. 
388. 

2  36  Holroyd  v.  Marshall,  10  H.  L.  Gas.  191,  33  Law  J.  Ch.  193; 
Tailby  v.  Official  Receiver,  13  App.  Gas.  623;  Collyer  v.  Isaacs,  19 
Ch.  Div.  342;  Mitchell  v.  Winslow,  2  Story  (U.  S.)  630,  Fed.  Gas. 
No.  9,673;  Pennock  v.  Goe,  23  How.  (U.  S.)  117,  16  L.  Ed.  436;  Beall 
V.  White,  94  U.  S.  382,  24  L.'  Ed.  173;   Brett  v.  Carter,  2  Low.  (U.  S.> 


§§  11^-13)  8UBJECT-MATTEU    OF   SALE.  49 

and  will  not  prevail  a,c:ainst  a  purchaser  for  value  without 
notice. '-'^^  For  the  same  reasons  it  is  generally  assumed  that  in 
C(|uity  a  contract  for  the  sale  of  personal  property  afterwards 
to  be  acquired,  if  sufficiently  identified,  operates  to  give  to  the 
buyer  an  equitable  lien  or  interest  in  it  as  soon  as  it  is  ac- 
quired."* The  cases  cited  generally  relate  to  chattel  mort- 
gages, and  their  applicability  to  contracts  of  sale  is  doubtful."' 

Wagering  Contract — Sale  of  Chance. 

It  was  once  held  that  a  contract  for  the  sale  of  goods  to  be 
delivered  at  a  future  day,  when  the  seller  had  not  the  goods, 
but  intended  to  go  into  the  market  and  buy  them,  was  a  mere 
wager  on  the  price  of  the  commodity,  and  was  hence  invalid.-*" 
But  this  doctrine  has  been  exploded.-*^     "The  goods  which 

458,  Fed.  Cas.  No.  1,844;  Barnard  v.  Railroad  Co.,  4  Cliff.  (U.  S.) 
351,  Fed.  Cas.  No.  1,007;  McCaffroy  v.  Woodin,  G5  N.  Y.  459.  22  Am. 
Rep.  G44;  Benjamin  v.  Railroad  Co.,  49  Barb.  (N.  Y.)  441;  Phlla- 
dolphia,  W.  &  B.  R.  Co.  v.  Woelpper,  G4  Pa.  30(5,  3  Am.  Rep.  59G; 
Smithurst  v.  Edmunds,  14  N.  J.  lik].  408;  Williams  v.  Winsor,  12 
R.  I.  9;  Apperson  v.  Moore,  30  Ark.  5G,  21  Am.  Rep.  170;  Sillers  v. 
Lester,  4S  Miss.  513;  Ludlum  v.  Rothschild,  41  Minn.  218.  43  N.  W. 
137 ;  Central  Trust  Co.  v.  Improvement  Co.,  1G9  N.  Y.  314,  62  N.  E. 
387.  In  Massachusetts  the  rule  appears  to  be  the  same  in  equity  as 
at  law.  Moody  v.  Wright,  13  Mete.  (Mass.)  17,  30.  4G  Am.  Doc.  70G; 
Blanchard  v.  Cooke,  144  Mass.  225.  11  N.  E.  83:  Tatman  v.  Hum- 
phrey. 184  Mass.  3G1,  G8  N.  E.  844.  G3  L.  R.  A.  738,  100  Am.  St.  Rep. 
5G2.  So,  also,  In  Wisconsin,  Hunter  v.  Bosworth.  43  Wis.  583; 
Merchants'  &  Mechanics'  Sav.  Bank  v.  Holdredge.  84  Wis.  GOl,  55 
N.  W.  108.  Cf.  Thompson  v.  Fairbanks.  19G  U.  S.  51G,  25  Sup.  Ct 
30<j,  49  L.  Ed.  577;  Humphrey  v.  Tatman,  198  U.  S.  91.  25  Sup.  Ct 
567,  49  L.  Ed.  95G.  See  "Transfers  of  After-Acquired  Property," 
by  Samuel  Williston,  19  Harv.  I>a\v  Rep.  557;  Williston,  Cas.  Sales. 
p.  23.  note  1. 

237  Joseph  V.  Lyons.  15  Q.  B.  Div.  280,  54  Law  J.  Q.  B.  3;  Ilallas 
V.  Robinson,  15  Q.  B.  Div.  288;  Morrill  v.  Noyes.  5G  Me.  458,  460,  90 
Am.  Dec.  486. 

238  Benj.  Sales,  §  81.  See  Scammon  v.  Bowers,  1  Ilask.  (U.  S.) 
496.  Fed.  Cas.  No.  12.431;  Hamilton  v.  Bank.  3  Dill.  (U.  S.)  2:?(i. 
Fed.  Cas.  No.  5,987;  Post  v.  Corbin.  5  Nat.  Bankr.  Rep.  (U.  S.)  11, 
Fed.  Cas.  No.  11.299. 

230  10  Harv.  Law  Rep.  584-585. 

2*0  Bryan  v.  Lewis,  Ryan  &  M.  386. 

2*1  Hibblewhite  v.  McMorlne,  5  Moos.  &  W.  462;  Mortimer  v.  Mc- 
Callan,  6  Mees.  &  W.  58;  Ajello  v.  Worsloy  (1898)  1  Ch.  274:  Apple- 
man  V.  Fisher,  34  Md.  .j51 ;  Stanton  v.  Small,  3  Sandf.  (N.  Y.)  2.^0; 

Tiff.Sales(2d  Ed.) — 4 


50  FORMATION    OF   THE    CONTRACT.  (Cll,  1 

form  the  subject  of  a  contract  to  sell  may  be  either  existing 
goods,  owned  or  possessed  by  the  seller,  or  goods  to  be  manu- 
factured or  acquired  by  the  seller  after  the  making  of  the  con- 
tract to  sell."  '*^  Nor  is  a  contract  to  sell  goods  invalid  be- 
cause the  acquisition  of  the  goods  by  the  seller  depends  upon  a 
contingency  which  may  or  may  not  happen, ^^^  as  in  the  case 
of  goods  to  arrive  by  a  certain  ship.^**  It  is  only  in  this  sense 
that  there  can  be  the  sale  of  a  chance,  known  to  the  civil  law 
as  "venditio  spei."  ^*^  Thus  it  has  been  held  that  a  sale  of  fish 
to  be  caught  had  no  effect  to  pass  the  property  in  the  fish  when 
caught,^ *^  but  there  seems  no  reason  why  a  contract  by  a  fish- 
erman to  sell  all  the  fish  he  might  catch  on  a  particular  voyage 
should  not  be  good  as  an  executory  agreement. 


MUTUAL   ASSENT   AND    FORM   OF    CONTRACT. 

14.  The  transfer  of  the  property  is  effected  by  the  mutual  as- 

sent of  the  parties  to  the  contract  of  sale. 

15.  At  common  la'w  a  contract  of  sale  may  be  made  in  ^v^rit- 

ing  (either  TO-ith  or  'without  seal),  or  by  •word  of  mouth, 
or  partly  in  Ttrriting  and  partly  by  -word  of  mouth,  or 
may  be  inferred  from  the   conduct  of   the  parties. ^47 

Clarke  v.  Foss,  7  Biss.  (U.  S.)  541,  Fed.  Cas.  No.  2,852 ;  Wamsley  v.  H. 
D.  Horton  &  Co.,  77  Hun  (N.  Y.)  317,  28  N.  T.  Supp.  423 ;  Fletcher 
V.  Packing  Co.,  41  App.  Div.  30,  58  N.  Y.  Snpp.  612;  Forsyth  Mfg. 
Co.  V.  Castlen,  112  Ga.  199,  37  S.  E.  485,  81  Am.  St.  Rep.  28;  North- 
ington-lSIunger-Pratt  Co.  v.  Warehouse  Co.,  119  Ga.  851,  47  S.  E.  200, 
100  Am.  St.  Rep.  210;    post,  p.  218. 

242  Sales  Act,  §  5  (1). 

243  Taft  V.  Church,  162  Mass.  527,  39  N.  E.  283.  See  Sales  Act,  § 
5   (2). 

244  Hale  V.  Rawson,  27  Law  J.  C.  P.  189;  Whitehead  v.  Root, 
2  Mete.  (Ky.)  584;  post,  p.  235. 

24  6Poth.  Cont.  de  Vente,  No.  61.  See  Buddie  v.  Green,  27  Law 
J.  Exch,  33,  34,  per  Martin,  B.;  Hitchcock  v.  Giddings,  4  Price,  135, 
140,  per  Richards,  C.  B.;  Hanks  v.  Palling,  6  El.  &  Bl.  659,  669,  2& 
Law  J.  Q.  B.  375,  per  Lord  Campbell,  O.  J.  Cf.  Losecco  v.  Gregory, 
ICS  La.  648,  32  South.  985. 

246  Low  V.  Pew,  108  Mass.  347,  11  Am.  Rep.  357. 

247  Sales  Act,  §  3. 


§§  14r-15)      MUTL'AL   ASSKNT    AM>    I'oKM    OF   CONTI5ACT.  51 

Mutual  Assent. 

If  there  be  parties  capable  of  coiitraclini,'',  and  a  thiii^;  in  ex- 
istence and  owned  by  one  of  them,  the  property  in  the  thint,-- 
may  be  transferred  whenever  the  parties  mutually  assent  to  the 
transfer.  Neither  delivery  of  the  thing  nor  payment  of  the  price 
is  necessary  to  perfect  the  transfer. =**  The  parties  may  make 
whatever  bargain  they  please.  They  may  agree  that  the  trans- 
fer shall  take  effect  at  once,  or  they  may  agree  that  it  shall  not 
take  eltect  until  after  delivery  or  payment,  or  the  happening  of 
some  other  condition;  and  if  they  express  their  intentions 
clearly,  the  law  will  give  effect  to  them. 

The  contract  of  sale,  like  other  contracts,  is  founded  on  mu- 
tual assent.  The  principles  of  law  which  govern  the  formation 
of  the  contract  are  the  same  as  those  which  govern  the  forma- 
tion of  contracts  generally,  and  little  need  be  said  in  regard 
to  them.  Thus  an  offer  to  buy  or  to  sell,  in  order  to  ripen  into  a 
binding  agreement,  must  be  accepted,  and  the  acceptance  must 
be  unconditional;^*®  and  until  acceptance,  but  not  after,  the 
offer  may  be  withdrawn.^ ^° 

248  Benj.  Sales,  §  3;   post,  p.  121. 

24  9  Ilutcliison  V.  Bowker,  5  Moes.  &  W.  535;  Hyde  v.  Wrench.  3 
Eeav.  3.34;  Jordan  v.  Norton,  4  Mecs.  &  W.  155;  Feltbouse  v.  Bind- 
ley, 11  C.  B,  (N.  S.)  8G9,  31  Law  J.  C.  P.  204;  Minneapolis  &  St.  li. 
Ky.  Co.  V.  Mill  Co.,  119  U.  S.  149,  7  Sup.  Ct.  IGS,  30  L.  Ed.  3TG;  Carr 
V.  Dnvall.  14  Pet.  (U.  S.)  77,  10  L.  Ed.  3G1;  Myers  v.  Smitli.  4S  P.arb. 
(X.  Y.)  G14;  Potts  v.  Whitehead.  23  N.  J.  Eq.  512;  Ilutchcson  v. 
Blakoman,  3  Mete.  (Ky.)  SO;  Smith  v.  Gowdy.  8  Alien  (Mass.)  5G6; 
Effsleston  v.  Wagner,  46  Mich.  GIO.  10  N.  W.  37;  Maelay  v.  Harvey, 
9<)  111.  525,  32  Am.  Rop.  35;  Bobinson  v.  Woller,  81  Ga.  704,  8  S.  B. 
447;  Maynard  v.  Tabor,  53  Me.  511;  Mcintosh  v.  Brill,  20  U.  C. 
C.  P.  42G.     See  Clark,  Cont.  (2d  Ed.)  21-31. 

2S0  Cooke  V,  Oxley,  3  Term  R.  G53:  Routledge  v.  Grant,  4  Binfr. 
G53;  Paine  v.  Cave,  3  Terra  R.  148;  Head  v.  Dipgon,  3  Man.  &  R. 
97;  Smith  v.  Pludson,  0  Best  &  S.  431,  34  Law  J.  Q.  B.  145;  Dick- 
inson V.  Dodds,  2  Ch.  Div.  4G3;  Byrne  v.  Van  Tienhoven,  5  C.  P. 
Div.  344;  Stevenson  v.  Mclean,  5  Q.  B.  DIv.  34G;  Craig  v.  Harper. 
3  Cush.  (Mass.)  158;  Boston  &  M.  R.  Co.  v.  Bartlott,  Id.  224;  Fisher 
V.  Seltz'T,  23  Pa.  308,  G2  Am.  Dec.  3.35;  .Johnston  v.  Fessler,  7 
Watts  (Pa.)  48,  32  Am.  Dec.  738;  Grotenkemper  v.  Achtermeyer.  11 
Bush  (Ky.)  222;  Tucker  v.  Woods,  12  Johns  (X,  Y.)  190,  7  Am.  Dec. 
305;  Faulkner  v.  Hebard,  2G  Vt.  452;  Falls  v.  Gaither,  9  Port.  (.Via.) 
G06;  Eskrldge  v.  Glover,  5  Stew.  &  P.  (.Via.)  2t^i.  20  Am.  Dec.  344: 
Larmon  v.  Jordan,  5G  111.  204;    Johnson  v.  Fllkington,  39  Wiis.  iVl; 


62  FORMATION    OF   THE   CONTRACT.  (Ch.  1 

Mistake  Affecting  Mutual  Assent. 

From  the  principle  that  contracts  can  be  effected  only  by 
mutual  assent,  it  follows  that  where,  through  some  mistake  of 
fact,  each  was  assenting  to  a  different  contract,  there  is  no  valid 
agreement,  notwithstanding  the  apparent  mutual  assent.*'^ 

Same — Mistake  as  to  Parties. 

Such  a  mistake  may  arise  as  to  the  identity  of  the  person 
with  whom  the  contract  is  made.  Where  A.  intends  to  contract 
with  B.,  and  addresses  an  offer  to  him,  C.  cannot  substitute 
himself  as  a  party  by  accepting  the  offer;  and  in  such  case,  if 
A.  thinks  the  acceptance  is  by  B.,  there  is  no  contract.  For  ex- 
ample, if  a  buyer  sends  an  order  for  goods  to  a  firm,  and  the 
order  is  filled  by  a  different  firm,  which  has  succeeded  the  firm 
to  which  the  order  was  sent,  and  the  buyer  supposes  it  to  have 
been  filled  by  the  firm  to  whom  he  gave  the  order,  there  is  no 
contract.^^^  In  such  a  case  the  seller  could  recover  the  goods 
from  the  supposed  buyer,  if  he  refused  to  pay  for  them,  provid- 
ed they  were  unconsumed,  but  he  could  not  recover  the  price. 
So,  if  a  person  obtains  goods  from  another  by  falsely  represent- 
ing that  he  is  the  agent  of  a  third  person,  to  whom  the  owner 
supposes  he  is  selling,  there  is  no  sale.^'^ 

Clark,  Cont.  (2d  Ed.)  31.  As  to  contracts  by  letter,  see  Benj.  Sales, 
§  44  et  seq;  Pol.  Cont.  (4th  Ed.)  31  et  seq;  Clark,  Cont.  (2d  Ed.)  25; 
Langd.  Cas.  Cont.  993;  "Contract  by  Letter,"  by  Prof.  Langdell,  7 
Am.  Law  Rev,  432. 

251  Benj.  Sales,  §  50;  Utley  v.  Donaldson,  94  U.  S.  29,  47,  24  L. 
Ed.  54.    See  Clark,  Cont.  (2d  Ed.)  206. 

2  52  Boulton  V.  Jones,  2  Hurl.  &  N.  564,  27  Law  J.  Exch.  117.  And 
see  Boston  Ice  Co.  v.  Potter,  123  Mass.  28,  25  Am.  Rep.  9;  Randolph 
Iron  Co.  V.  Elliott,  34  N.  J.  Law,  184;  Barnes  v.  Shoemaker,  112  Ind. 
512,  14  N.  E.  367;  Consumers'  Ice  Co.  v.  Webster,  Son  &  Co.,  32  App. 
Div.  592,  53  N.  T.  Supp.  56 ;  Barcus  v.  Dorries,  71  N.  Y.  Supp.  695 ; 
Clark,  Cont.  (2d  Ed.)  199.  Where  goods  were  ordered  by  Arthur  B. 
Alexander  in  the  name  of  "A.  Alexander,"  and  the  seller  shipped 
them  to  "A.  Alexander,"  supposing  they  were  ordered  by  Alfred 
Alexander,  who  was  a  man  of  means,  whereas  Arthur  was  notorious- 
ly insolvent,  no  title  passed  to  the  latter.  Newberry  v.  Norfolk  & 
S.  R.  Co..  133  N.  C.  45,  45  S.  E.  356.  Cf.  Preston  v.  Foellinger  (C.  C.> 
24  Fed.  680.    As  to  fraudulent  impersonation,  post,  p.  196. 

2,63  Higgins  V.  Burton,  26  L.  J.  Ex.  342;  Hardman  v.  Booth.  1  Hurl. 
&  C.  803;  Moody  v.  Blake,  117  Mass.  23,  19  Am.  Rep.  394;  Edmunds 
V.  Merchants'  Dispatch  Transportation  Co.,  135  Mass.  283;   McCrillis 


^>?  14-15)      MUTUAL   ASSENT   AND    FOKM    OF   CONTKACT.  53 

Same — Mistake  as  to  Thing  Sold. 

Mistake  mav  arise  as  to  the  identity  or  existence  of  the  thing 
sold. 

When  a  person  has  entered  into  a  contract,  the  nature  of 
which  he  understands,  he  will  not  generally  be  heard  to  sav 
that  his  meaning  was  not  expressed  in  his  words,  and  that  he 
intended  to  contract  for  something  different  from  that  which 
his  words  naturally  indicate.*''*  But  an  agreement  may  be  void 
for  mistake  when  two  things  have  the  same  names,  and  the 
parties,  owing  to  the  identity  of  names,  mean  different 
things;  '*"  for  example,  where  the  buyer  agreed  to  buy  a  cargo 
"to  arrive  ex  Peerless  from  Bombay,"  and  there  were  two 
ships  of  that  name,  and  the  buyer  meant  one,  and  the  seller  the 
other.*""  Or  the  seller,  having  goods  of  two  sorts,  may  un'ler- 
take  to  sell  goods  of  one  sort  which  he  mistakenly  supposes  are 
contained  in  a  particular  package ;  and  if,  under  this  common 
mistake,  the  parties  agree  to  buy  and  sell  the  goods  in  that  pack- 
age, there  is  no  contract.-"  Or  the  mistake  may  arise  by  the 
fault  of  a  broker  who  makes  the  sale,  and  describes  a  different 
article  to  each  party.*"* 

As  we  have  seen,  if,  unknown  to  the  seller,  the  subject  of 
sale  is  not  in  existence  there  is  no  contract.*^" 

V.  Allen,  57  Vt.  505;  Barker  v.  Dinsiiiore,  72  Pa.  427.  13  Aru.  Rep. 
G97;  Heiitz  v.  Miller.  9i  N.  Y.  07;  Ilanu't  v.  Letcher,  37  Ohio  St.  3.'k;, 
41  Am.  Hep,  519;  Peters  Box  &  Lumber  Co.  v.  Lcsh,  119  Ind.  98.  20 
N.  E.  291,  12  Am.  St.  Rep.  367.  Where  the  plaintiffs  consigned  wool 
to  a  broker  to  whom  they  would  not  sell,  on  the  understanding  that 
it  was  sold  to  an  undisclosed  principal  in  good  credit  with  the  plain- 
tiffs, there  was  no  sale  to  the  broker,  and  he  had  no  power  to  con- 
vey a  good  title  to  a  bona  fide  purchaser.  Rodliff  v.  Dallinger,  141 
Mass.  1,  4  N.  E.  805,  55  Am.  Rep.  4.39;    post,  p.  19G. 

264  BenJ.   Sales.  §  417;   Clark.  Cont.    (2d  Ed.)   196.  200. 

286  Raffles  V.  Wichelhaus,  2  ITurl.  &  C.  900,  33  Law  J.  E.xch.  160; 
Kyle  V.  Kavanagh.  103  Mass.  350.  4  Am.  Rop.  500. 

2  68  Raffles  V.  Wichelhaus,  cited  In  preceding  note. 

2  67  Harvey  v.  Harris,  112  Mass.  32.  See,  also,  Sheldon  v.  Oapron, 
8  R.  I.  171 :  post,  p.  58. 

«6«  Tliomton  v.  Kempster,   5  Taunt.   786. 

«6B  Ante,  p.  45.  Mistake  as  to  the  situation  of  the  goods  may 
avoid  the  contract.     Ketchum  v.  Catlin,  21  Vt.  191. 


54  FORMATION  OF  THE  CONTRACT.         (Ch.  1 

Same — Mistake  as  to  Price. 

If  the  parties  are  not  agreed  as  to  the  price,  there  is,  of 
course,  no  contract.  Consequently,  if  the  seller  states  the 
price,  and  the  buyer  understands  him  to  name  a  different  price, 
and  accepts  the  offer  upon  such  misunderstanding,  there  is  no 
contract.^^"  So,  where  the  price  named  by  the  seller  for 
shingles  was  $3.25,  which  the  seller  meant  to  be  the  price  per 
bunch,  and  the  buyer  understood  to  be  the  price  per  thousand, 
there  was  no  agreement.^ ®^  A  mistake  in  fixing  the  terms,  not 
induced  by  the  conduct  of  the  other  party,  has,  as  a  rule,  no 
effect  upon  the  contract.^^-  But  if  the  mistake  is  known  to 
the  other,  or  if  he  has  reason  to  know  it,  the  contract  is  void- 
able.2«3 

Same — Mistake  must  Go  to  the  Root  of  the  Contract. 

Mistake,  however,  to  have  the  effect  of  invalidating  the  con- 
tract, must  go  to  the  root  of  the  contract,  and  must  be  such  as 
to  negative  the  idea  that  the  parties  were  ever  ad  idem  •,^^*  for, 
if  the  buyer  purchases  the  very  article  at  the  very  price  and  en 
the  very  terms  intended  by  him  and  by  the  seller,  the  sale  is 
completed  by  mutual  assent,  even  if  it  may  be  liable  to  be 
avoided  for  fraud,  illegality,  or  some  other  cause,^®^  or  even 
though  the  buyer  or  the  seller  may  be  totally  mistaken  in  the 
motive  which  induces  the  assent,^ ®^  or  even  though  the  thing 

260  Phillips  V.  Bistolli,  2  Barn.  &  C.  511;  Rupley  v.  Daggett,  74 
111.  351;  Rovegno  v.  Defferari,  40  Cal.  459;  Hogue  v.  Maekey,  44 
Kan.  277,  24  Pac.  477  (terms  of  payment).  And  see  Peerless  Glass 
Co.  V.  Tinware  Co.,  121  Cal.  641,  54  Pac.  101. 

261  Greene  v.  Bateman,  2  Woodb.  &  M.  (U.  S.)  359,  Fed.  Cas.  No. 
5,762.    See,  also,  Singer  v.  Match  Co.,  117  Ga.  86,  43  S.  E.  755. 

262  Griffin  v.  O'Neil,  48  Kan.  117,  29  Pac.  143;  Clark,  Cont.  (2d  Ed.) 
205. 

263  Where  the  seller,  intending  to  offer  cattle  for  $261.50,  by  a  lap- 
sus linguae  offered  them  for  $161.50,  and  the  buyer,  having  good  rea- 
son to  suppose  that  the  offer  was  a  mistake,  accepted  it,  and  paid 
$20  on  account,  and  the  seller  tendered  back  the  $20  and  repudiated 
the  sale,  the  buyer  was  not  entitled  to  maintain  replevin.  Harran 
V.  Foley,  62  Wis.  584,  22  N.  W.  837.  See.  also,  Everson  v.  Granite 
Co.,  65  Vt.  658,  27  Atl.  320.  Cf.  Mummenford  v.  Randall,  19  Ind. 
App.  44,  49  N.  E.  40;    post,  p.  55. 

264  Pol.  Cont.  (4th  Ed.)  411. 

265  Post,  ec.  5,  6. 

260  Benj.  Sales,  §  54.     Mistaken  belief  that  thing  would  answer  a 


^§  14-15)       MUTUAL    ASSKNT    AND    FOKM    OF   CONTKACT.  55 

sold  failed  to  possess,  or  possessed,  qualities  which  the  parties 
believed,  or  did  not  believe,  it  to  possess. ^'•^  Thus,  where  a 
woman  sold  an  uncut  stone  to  a  jeweler  for  $1,  both  beings 
ignorant  of  the  character  of  the  stone  and  of  its  intrinsic  value, 
and  it  turned  out  to  be  a  diamond  worth  $700,  it  was  held 
that  there  was  no  such  mistake  as  would  avoid  the  contract."* 
The  parties  may,  indeed,  make  the  possession  of  some  quality  a 
condition  of  the  contract,  as  if  they  should  contract  for  the 
sale  of  "this  uncut  diamond,"  in  which  case,  if  the  contract  were 
construed  as  making  it  a  condition  that  the  stone  should  be  a 
diamond  and  it  was  in  fact  not  such,  there  would  be  no  con- 
tract, because  the  subject-matter  of  the  contract  was  not  in  ex- 
istence.^*" 

Mistake  as  Nature  of  Promise  Knoztm  to  the  Other  Party. 

Although  a  mistake  on  the  part  of  one  party  in  respect  to  the 
nature  or  qualities  of  the  subject-matter  of  the  sale,  not  induced 
by  the  conduct  of  the  other  party,  has,  as  a  rule,  no  effect  upon 
the  contract,  the  law  will  not  allow  one  party  to  accept  a  prom- 

certaiu  purpose:  Chanter  v.  IlopUius,  4  Mees.  &  W.  399;  Ollivant  v. 
Bayloy.  5  Q.  B.  288;  Prideaux  v.  Bunnett,  1  C.  B.  (N.  S.)  613.  Mis- 
take as  to  condition  of  horse:  Wheat  v.  Cross,  31  Md.  99,  1  Am.  Uep. 
28.  Mistake  as  to  solvency  of  maker  of  note  bought  through  broker: 
Hecht  V.  Batcheller,  147  Mass.  335,  17  N.  E.  651.  9  Am.  St.  Rep.  70H; 
Taylor  v.  Fleet,  4  Barb.  (N.  Y.)  95.  See,  also.  Sample  v.  Brid^forth, 
72  Miss.  293,  16  South.  876. 

The  fact  that  the  buyer  by  mistake  ordered  a  larger  quantity  than 
he  desired  is  immaterial.  J.  A.  Coates  &  Sons  v.  Buck,  93  Wis.  128, 
67  N.  W.  23;  Alfred  Shrimpton  &  Son  v.  Brlce,  102  Ala.  655,  15 
South.  452;   J.  A.  Coates  &  Sons  v.  Early,  46  S.  0.  220,  24  S.  E.  305. 

267  Taylor  v.  Ford,  131  Cal.  440,  63  Pac.  770. 

26  8  Wood  V.  Boynton,  04  Wis.  205,  25  N.  W.  42,  54  Am.  Rep.  610. 

It  is  difficult  to  reconcile  with  the  current  of  authority  the  case  of 
Sherwood  v.  Walker,  06  Mich.  568,  33  N.  W.  919,  11  Am.  St.  Rep.  531. 
Here  the  subject  of  sale  was  a  blooded  cow,  believed  by  the  parties 
to  be  barren,  and  for  this  reason  a  bargain  was  made  to  sell  her 
at  a  price  per  pound  equivalent  to  about  .$80,  but  t)efore  delivery  It 
was  discovered  that  she  was  with  calf,  and  hence  worth  ?750  to  51,- 
000,  and  it  was  held  that  the  seller  could  rescind  on  the  ground  that 
the  mistake  affected  the  substance  of  the  whole  consideration. 

200  Clark,  Cont.  (2d  Ed.)  203;  Pol.  Cont.  {3d  Ed.)  450.  See  Irwin  v. 
Wilson,  45  Ohio  St.  426.  15  N.  E.  209;  Watson  v.  Brown,  113  l<>wa. 
308.  85  N,  W.  28.  Cf.  Hood  v.  Todd,  22  Ky.  Law  Rep.  837.  58  S.  W. 
783. 


56  FORMATION  OF  THE  CONTRACT.         (Cll.  1 

ise  which  he  knows  that  the  other  party  understands  in  a  differ- 
ent sense  from  that  in  which  he  understands  it.^''°  And,  if  the 
mistake  of  the  one  party  as  to  the  nature  of  the  promise  is 
known  to  the  other,  he  is  not  entitled  to  insist  that  the  promise 
shall  be  fulfilled  in  a  sense  to  which  the  mind  of  the  promisor  did 
not  assent.^^^  Thus,  where  the  defendant  was  sued  for  the 
price  of  some  oats,  which  he  refused  to  accept  on  the  ground 
that  he  had  agreed  and  intended  to  buy  old  oats,  and  that  those 
supplied  were  new,  the  jury  were  told  that,  if  the  plaintiff  be- 
lieved the  defendant  to  believe  that  he  was  buying  old  oats,  then 
he  could  not  recover.  The  court  of  review,  however,  held  that 
this  was  not  enough  to  avoid  the  sale,  but  that  in  order  to  do  so 
the  plaintiff  must  have  believed  the  defendant  to  believe  that 
he,  the  plaintiff,  was  contracting  to  sell  old  oats.^'^^ 

Form  of  Contract. 

Aside  from  the  provisions  of  the  statute  of  frauds,  which  will 
be  considered  later,  no  writing  or  other  formality  is  necessary 
to  effect  a  sale  or  contract  to  sell.  If  the  contract  is  in  writing, 
the  ordinary  rules  of  evidence  apply.  If  the  assent  of  the  par- 
ties is  not  clearly  expressed,  it  may  be  implied  from  their  lan- 
guage^ ^^  or  conduct,^''*  as  if  a  customer  takes  goods  from  a 

270  Anson,  Cont.  (8th  Ed.)  138. 

271  Smith  V.  Hughes,  L.  R.  6  Q.  B.  597;  Gill  v.  McDowell  (1903)  2 
J.  Rep.  4(>3;   Clark,  Cont.  (2d  Ed.)  205. 

272  Smith  V.  Hughes,  supra. 

273  A  "grumbling"  assent.    Joyce  v.  Swann,  17  C.  B.  (N.  S.)  84,  101. 

274  Stoudenmire  v.  Harper,  81  Ala.  242,  1  South.  857;  Kinney  v. 
Railroad  Co.,  82  Ala.  368,  3  South.  113;  W.  W.  Kendall  Boot  &  S.  Co. 
V.  Bain,  46  Mo.  App.  581;  Bicking  v.  Stevens,  69  Mo.  App.  168;  In  re 
Cope's  Estate,  191  Pa.  589,  43  Atl.  473;  Excelsior  Coal  Min.  Co.  v. 
Coal  Co.,  23  Ky.  Law  Rep.  1834,  66  S.  W.  373. 

Shipment  and  delivery  of  goods  is  an  acceptance  of  an  offer  to 
buy.  Ober  v.  Smith,  78  N.  C.  313;  Whitman  Agricultural  Co.  v. 
Strand,  8  Wash,  647,  36  Pac.  682;  Aultman,  Miller  &  Co.  v.  Nilson, 
112  Iowa,  634,  84  N.  W.  692 ;  Burwell  &  Dunn  Co.  v.  Chapman,  59  S. 
C.  581,  38  S.  E.  222  ;•  National  Cash  Register  Co.  v.  Dehn,  139  Mich. 
406,  102  N.  W.  965. 

Using  goods  sent  without  order,  with  knowledge  that  the  sender  ex- 
pects payment,  constitutes  an  implied  sale.  Wellauer  v.  Fellows. 
48  Wis.  105,  4  N.  W.  114;  Indiana  Mfg.  Co.  v.  Hayes,  155  Pa.  160, 
26  Atl.  6;  Louis  Cook  Mfg.  Co.  v.  Randall,  62  Iowa,  244,  17  N.  W. 
507 ;  Barnes  v.  Shoemaker,  112  Ind.  512,  14  N.  E.  367;  Doerr  v.  Wool- 


S§  14-15)       MUTUAL    ASSENT   AND    FOKM    OF   CONTRACT.  67 

counter,  and  nothing-  is  said  as  to  price,  a  contract  to  pay  their 
reasonable  value  is  inferred.'"  In  the  same  way,  where  there 
is  an  express  contract,  and  jijoods  are  sent  which  are  not  in  ac- 
cordance with  it,  but  which  nevertheless  the  buyer  keeps,  a 
contract  to  pay  for  them  is  implied.  This  doctrine  is  most  fre- 
quently applied  where  the  contract  is  for  a  certain  quantity  of 
goods,  only  a  part  of  which  are  delivered.'" 

Sale  by  Suit. 

There  is  one  case  where  a  sale  takes  place  by  implication  of 
law  rather  than  by  the  mutual  assent  of  the  parties,  either  ex- 
press or  inijilied.  Where  in  an  action  for  trespass  to  goods, 
or  the  detention  or  wrongful  conversion  thereof,  the  plaintiflF 
recovers  the  value  of  the  goods,  as  damages,  and  the  defend- 
ant satisfies  the  judgment,  the  transaction  operates  as  a  sale  of 


sey,  7  N.  Y.  Siipp.  662,  15  Daly,  284;  Indiana  Mfg.  Co.  v.  Hayes, 
ins  Pa.  100,  28  Atl.  6;  Thonip.son  v.  Douglas.  Sn  W.  Va.  337,  13  S. 
E.  1015. 

But  no  sale  can  be  implied  from  acts  of  ownership  by  one  ignorant 
that  he  Is  using  goods  of  one  who  seeks  to  charge  him  as  buyer. 
Schutz  V.  Jordan,  141  U.  S.  213,  11  Sup.  Ct.  900,  35  L.  Ed.  705;  (Jraut 
V.  Cole.  8  Ala.  519;    Deysher  v.  Frieliel,  04  Pa.  ns:;. 

A  person  cannot,  by  sending  goods  to  another,  gain  tlie  right  to 
treat  him  as  buyer  because  he  fails  to  notify  the  sender  that  be  will 
not  buy,  unless  the  relation  of  the  parties  or  other  circumstances  im- 
pose a  duty  to  speak.  Hobbs  v.  \Yhip  Co..  1.58  Mass.  194.  33  N.  E. 
495.    But  see  Thompson  v.  Douglas,  35  W.  Va.  3;{7,  13  S.  E.  101.5. 

275  Bl.  Comm.  bk.  2,  c.  30;  Hoadly  v.  McLaine.  10  P.ing.  482.  487. 
per  Tindal,  C.  J.;  Thompson  v.  Douglas,  35  W.  Va.  337,  13  S.  E. 
1015. 

Where  goods  ordered  of  one  person  are  supplied  by  another,  by  the 
acceptance  and  use  of  the  g(X)ds.  with  notice  that  they  have  been  so 
supplied,  a  contract  of  sale  Is  implied.  Barnes  v.  Shoemaker.  112 
Ind.  512,  14  N.  E.  307. 

27oOxendale  v.  Wetherell.  9  Barn.  &  C.  380;  Colonial  Ins.  Co.  of 
New  Zealand  v.  Insurance  Co..  12  App.  Cas.  128,  138;  Kieliardsnn  v. 
Dunn.  2  Q.  B.  218;  Hart  v.  Mills.  15  .Mees.  &  W.  85;  Bowker  v.  Iloyt. 
18  Pick.  (Mass.)  555;  Sentell  v.  Mitchell.  28  Ga.  190;  Richards  v. 
Shaw.  07  111.  222;  Flanders  v.  Putney.  58  X.  H.  358;  Booth  v.  T>'son, 
15  Vt.  51.5,  518.  Oxendale  v.  Wetherell.  supra,  has  sometimes  been 
disapproved.  Chaniplin  v.  Rowley.  13  Wend.  (N.  Y.)  2.58:  Id..  18 
Wend.  187;  Kein  v.  Tupper,  52  N.  Y.  555;  Witherow  v.  Witherow,  10 
Ohio,  238.     See  post,  p.  283. 


58  FORMATION   OF   THE    CONTRACT,  (Ch.  1 

the  goods  by  the  plaintiff  to  the  defendant.^^^    An  unsatisfied 
judgment  does  not  pass  the  property.^^* 

Whether  the  Contract  be  of  Sale  a  Question  of  Intention. 

Whether  a  contract  be  a  contract  of  sale,  or  some  other  kind 
of  a  contract,  is  a  question  of  substance,  not  of  form,  and  de- 
pends on  the  intention  of  the  parties.  Thus,  as  has  been  seen, 
it  is  a  question  of  the  real  meaning  of  the  parties,  whether  a 
contract  is  to  be  construed  as  a  contract  of  sale  or  of  bail- 
ment; ^"^  and  the  law  will  look  to  the  substance  of  the  trans- 
action, and  not  to  the  name  by  which  the  parties  designate 
j|-_28o  ^j^(j  j£  ^j^g  mutual  intention  to  buy  and  sell  be  wanting 
there  is  no  sale.^®^  Thus  the  sale  of  an  article  containing  a 
hidden  treasure  is  no  sale  of  the  treasure ;^^-    and  if,  by  mis- 

277  Jenk.  4  Cent.  8S ;  Cooper  v.  Shepherd,  3  C.  B.  266,  15  Law  J.  C. 
P.  237.  On  principle,  the  recovery  would  only  have  this  effect  where 
the  value  of  the  thing  converted  is  included  in  the  judgment.  Benj. 
Sales,  §  49. 

278  Brinsmead  v.  Harrison,  L.  R,  6  C.  P.  584,  affirmed  in  L.  R.  7 
C.  P.  547;  Ex  parte  Drake,  5  Ch.  Div.  866;  Hepburn  v.  Sewell.  5 
Har.  &  J.  (Md.)  211,  9  Am.  Dec.  512;  Lrovejoy  v.  Murray,  3  Wall.  (U. 
S.)  1,  16,  18  L.  Ed.  129;  Osterhout  v.  Roberts,  8  Cow.  (N.  Y.)  43; 
Marsden  v.  Cornell,  62  N.  Y.  215;  Brady  v.  Whitney,  24  Mich.  1.54; 
Miller  v.  Hyde,  161  Mass.  472,  37  N.  E.  760,  25  L.  R.  A.  42,  42  Am. 
St.  Rep.  424.  Contra:  Floyd  v.  Browne,  1  Rawle  (Pa.)  121,  18  Am. 
Dee.  602;  Marsh  v.  Pier,  4  Rawle  (Pa.)  273,  26  Am.  Dec.  131;  In  re 
Merrick's  Estate,  5  Watts  &  S.  (Pa.)  17. 

279  Ante,  p.  10. 

2  80  Sale  or  lease.  Hervey  v.  Locomotive  Works,  93  U.  S.  664.  23 
L.  Ed.  1003. 

281  Concord  Coal  Co.  v.  Ferrin,  71  N.  H.  331,  51  Atl.  283,  93  Am.  St. 
Rep.  496. 

Defendants'  general  agent,  after  being  instructed  not  to  add  to  de- 
fendants' stock  by  purchasing  more  goods,  agreed  with  plaintiffs,  who 
had  knowledge  of  such  instructions,  to  purchase  a  quantity  of  goods 
from  them  for  defendants,  and  surreptitiously  put  them  among  the 
stock  and  sell  them,  and  procure  payment  from  defendants,  as  he 
might  be  able  to  do,  without  their  knowledge  The  goods  were  so 
furnished  and  sold,  the  proceeds  going  to  defendants.  Held,  that 
plaintiffs  could  not  sue  for  goods  sold  and  delivered,  as  there  was  no 
valid  sale.  Schutz  v.  Jordan,  141  U.  S.  213,  11  Sup.  Ct.  906,  35  L.  Ed. 
705. 

2  82  Merry  v.  Green,  7  Mees.  &  W.  623;  Huthmacher  v.  Harris' 
Adm'rs,  38  Pa.  491,  80  Am.  Dec.  502;  Durfee  v.  Jones,  11  R.  I.  588, 
23  Am.  Rep.  528;   Bowen  v.  Sullivan,  62  Ind.  281,  30  Am.  Rep.  172; 


§§  16-17)  THE  PRICE.  69 

take,  other  goods  than  those  atjrccd  upon  be  delivered,  the 
property  in  the  goods  is  not  trajisferred."* 


THE    PRICE. 

16.  ASCERTAINMENT.     The   price   may  be   fixed  by   tb©   con- 

tract, or  may  be  left  to  be  fixe<l  in  anck  mauncr  as  may 
be  agreed,  or  may  be  deteriuined  by  the  course  of  deal- 
ing betircen  the  parties. 

17.  REASONABLE  PRICE.     Where  the  price  is  not  so  deter- 

mined,  the  buyer  must  pay  a  reasonable  price.  What 
is  a  reasonable  price  is  a  question  of  fact,  dependent 
on   the   circumstances   of  each   particular   case.^'''* 

As  has  been  stated,  the  consideration  for  a  sale  must  be  a 
price  in  money,  paid  or  promised,^*"^  Where  the  price  has  been 
expressly  agreed  on,  no  question  can  arise.  There  can  be  no 
sale  if  the  parties  have  not  agreed,  expressly  or  by  implication, 
upon  the  price  or  upon  the  manner  in  which  it  is  to  be  deter- 
mined.^^" But  the  price  need  not  be  specified,  if  it  can  be 
ascertained  in  accordance  with  the  contract.^*^ 

"Id  certum  est  quod  certum  reddi  potest."  ""    For  example, 

Ray  V.  Light,  34  Ark.  421.    Cf.  Gardner  v.  Lane,  9  Allen  (Mass.)  41«, 
85  Am.  Dec.  779.     Ante,  p.  63. 

283  Gardner  v.  Lane,  9  Allen  (Mass.)  402,  85  Am.  Dec.  779. 

284  Sales  Act,  §  9  (1),  (4). 
28  6  Ante,  p.  12. 

The  discharge  of  an  existing  indebtedness  of  the  seller  to  the  buyer 
is  sufficient.  Patton  v.  Gardiner,  72  Vt.  47,  47  Atl.  110;  llendrie  & 
BolthoCf  Mfg.  Co.  V.  Collins,  29  Colo.  102,  G7  Pac.  1G4;  Lewter  v. 
Lindley  (Tex.  Oiv.  App.)  81  S.  W.  77G.  Or  the  payment  or  a  promise 
to  pay  a  debt  of  the  seller.  Meade  v.  Smith,  16  Conn.  340;  Bell  v. 
Greenwood,  21  Ark.  249;   Hackley  v.  Cooksey,  35  Mo.  39S. 

286  Bigley  v.  Rishor.  G3  Pa.  l.'')2 ;  Foster  v.  Mining  Co.,  OS  Mich.  18S, 
36  N.  W.  171;  Borland  v.  Bank.  99  Cal.  89,  33  Pac.  737,  37  Am.  St 
Rep.  32;  Reynolds  v.  Miller,  79  Hun  (N.  Y.)  113,  29  N.  Y.  Supp.  405: 
Greer  v.  Bank.  128  Mo.  559,  30  S.  W.  319;  Still  v.  Cannon,  13  Okl. 
491,  75  Pac.  2&i. 

287  Valpy  V.  Gibson,  4  C.  B.  837,  at  page  804,  per  Wilde.  C  J. : 
Joyce  V.  Swann,  17  C.  B.  (N.  S.)  &i,  100;  Holbrook  v.  Setchel,  114 
Mass.  435;  Phifer  v.  Krwin,  100  N.  O.  59,  G  S.  B.  G72;  Clement  v. 
Drybread,  108  Iowa,  701,  78  N.  W.  235. 

2SS  Brown  v.  Bellows,  4  Pick.  (Mass.)  179,  189. 


60  FORMATION  OF  THE  CONTRACT.  (Ch.  1 

the  price  may  be  left  to  be  fixed  by  the  market  price  of  the  com- 
modity,^®^ or  by  the  price  another  article  shall  fetch  at  auc- 
tion,^^°  or  by  the  price  the  thing  sold  may  afterwards  fetch, ^^^ 
or  by  future  arrangement,^^^  or  by  the  valuation  of  a  third 
person. 2^^  Where  there  is  a  contract  to  sell  at  a  price  to  be 
fixed  by  a  third  person,  and  such  third  person  cannot  or  does 
not  fix  the  price,  the  contract  is  avoided,^®*  even  if  the  failure 
to  fix  the  price  is  caused  by  one  of  the  parties ;  but,  if  the 
goods  have  been  delivered  and  appropriated  by  the  buyer,  he  is 
liable  for  their  reasonable  value.^^^     But  as  the  assent  to  the 

2  89  Price  10  cents  less  than  Milwaukee  price  on  any  day  seller 
might  name.  McConnell  v.  Hughes,  29  Wis.  537.  Thirty-five  cents 
less  than  St.  Louis  market  price  on  day  of  delivery.  Shaw  v.  Smith, 
45  Kan.  334,  25  Pac.  886,  11  L.  R.  A.  681.  Market  price  when  buyer 
should  demand  payment.  McBride  v.  Silverthorne,  11  U.  C.  Q.  B. 
545 ;  Phifer  v.  Erwin,  100  N.  O.  59,  6  S.  E.  672.  And  see  Lund  v.  Mc- 
Cutchen,  83  Iowa,  755,  49  N.  W.  998 ;  Beardsley  v.  Smith,  61  111.  App. 
340;  Daniel  v.  Hannah,  106  Ga.  91,  31  S.  E.  734.  Price  to  be  regulat- 
ed by  the  price  of  gold.  Ames  v.  Quimby,  96  U.  S.  324,  24  L.  Ed.  635. 
Gf.  Acebal  v.  Levy,  10  Bing.  376,  382. 

2  90  Gunningham  v.  Brown,  44  Wis.  72. 

291  Phifer  v.  Erwin,  lOO  N.  G.  59,  6  S.  E.  672.  And  see  Hagins  v. 
Gombs,  102  Ky.  165,  43  S.  W.  222. 

282  Where  the  sale  is  for  a  reasonable  price,  to  be  afterwards 
agreed  upon,  the  title  passes,  if  such  is  the  mutual  intention,  though 
no  price  is  afterwards  agreed  upon.  Greene  v.  Lewis,  85  Ala.  221, 
4  South.  740,  7  Am.  St.  Rep.  42.  Of.  Wittkowsky  v.  Wasson,  71  N. 
G.  451.  Where  there  is  actual  delivery,  but  no  agreement  as  to  the 
price  or  means  of  making  it  certain,  the  title  does  not  pass ;  but,  if 
the  buyer  consume  the  goods,  he  must  pay  a  reasonable  price.  Albel*- 
marle  Lumber  Go.  v.  Wilcox,  105  N.  G.  34,  10  S.  E.  871. 

293  Brown  v.  Bellows,  4  Pick.  (Mass.)  170.  189;  Willingham  v. 
Veal,  74  Ga.  755;  Leonard  v.  Cox,  64  Mo.  32;  New  England  Trust 
Go.  V.  Abbott.  162  Mass.  148,  38  N.  E.  432,  27  L.  R.  A.  271. 

294  Thurnell  v.  Balbimie.  2  Mees.  &  W.  786;  Gooper  v.  Shuttle- 
worth,  25  Law  J.  Exch.  114;  A'ickers  v.  Vickers,  L.  R.  4  Eq.  529; 
Milnes  v.  Gery,  14  Ves.  400;  Wilks  v.  Davis,  3  Mer.  507;  Fuller  v. 
Bean,  30  N.  H.  181 ;  Elberton  Hardware  Co.  v.  Hawes.  122  Ga.  858, 
50  S.  E.  9G4.  See,  also,  Hutton  v.  Moore,  26  Ark.  382;  Preston  v. 
Smith,  67  111.  App.  613;   Benj.  Sales,  §  87. 

20  5  Clarke  v.  Westrope,  25  Law  J.  G.  P.  287 ;  Humaston  v.  Telegraph 
Go.,  20  Wall.  (U.  S.)  20,  22  L.  Ed.  279 ;  Kenniston  v.  Ham,  9  Fost.  (N. 
H.)  501.  The  same  rule  was  applied  where  the  goods  had  been  con- 
structively, but  not  actually,  delivered,  on  the  ground  that  preven- 
tion was  equivalent  to  performance.     Smyth  v.  Graig,  3  Watts  &.  S. 


§§  16-17)  TlIK    PRICK.  f51 

sale  may  be  implied,  as  well  as  express,  so  the  assent  to  the 
payment  of  a  reasonable  price  may  be  implied  from  the  circum- 
stances.^"' This  implication  arises  naturally  when  the  sale  has 
been  executed,  but  an  agreement  to  pay  a  reasonable  price  may 
also  be  implied  in  an  executory  contract.^"'  Such  cases  are,  of 
course,  to  be  distinguished  from  cases  in  which  the  contract  of 
sale  has  never  been  completed,  by  reason  of  failure  to  agree 
upon  a  price.^"^  What  is  a  reasonable  price  is  a  question  of 
fact,  dependent  on  the  circumstances  of  each  particular  case; 
for,  while  a  reasonable  price  is  ordinarily  the  market  price,  the 
market  price  may  be  unreasonable,  from  accidental  circum- 
stances, as  on  account  of  the  commodity  having  been  kept  back 
by  the  seller  himself.*"" 

(I'a.)  14.  See  Sales  Act,  §  10.  Cf.  Sale  of  Goods  Act,  §  9;  post. 
p.  233. 

208  Acebal  v.  Levy,  10  Bing.  37G;  Bennett  v.  Adams.  2  Cranch,  C. 
C.  551  (U.  S.)  Fed.  Cas.  No.  1,310;  Taft  v.  Travis,  13G  Mass.  95; 
.lames  v.  Muir,  33  Micb.  223;  Lovejoy  v.  Mlebels,  88  Micb.  1.5.  49 
N.  W.  901,  13  L.  R.  A.  770;  McEwen  v.  Morey,  GO  111.  32;  Sbealy  v. 
Edwards,  73  Ala.  175,  49  Am.  Rep.  43;  Livingston  v.  Wagner,  23 
.\ev.  53,  42  Pac.  290;  Lefurgy  v.  Stewart,  69  Hun  (N.  Y.)  614,  23  N. 
Y.  Supp.  537. 

207  iioadly  v.  McLaine,  10  Bing.  482;   Valpy  v.  Gibson,  4  0.  B.  837. 

208  Bigley  v.  Risher,  63  Ta.  152;  Foster  v.  Mining  Co.,  08  Mich. 
188,  30  N.  W.  171;  Whiteford  v.  Hitchcock,  74  Mich.  208,  41  N.  W. 
898. 

230  Acebal  v.  Levy,  10  Biug.  .■]7(;,  per  Tindal,  C.  J..  383;  James  v. 
Mulr,  33  Micb.  223 ;  Lovejoy  v.  Micbels,  88  Mich.  15.  49  N.  W.  901,  13 
L.  R.  A.  770. 


62  FORMATION  OF  THE  CONTRACT,  (Ch.  2 


CHAPTER  II. 

FORMATION  OF  CONTRACT  (Continued)— UNDER  THE   STAT- 
UTE OF  FRAUDS. 

18-20.  What  Contracts  are  Within  the  Statute, 

21-22.  What  are  Goods,  Wares,  and  Merchandise. 

23.  What  is  a  Contract  for  the  Price  or  Value  of  £10  ($50). 

24-2G.  Acceptance  and  Receipt. 
27-29.  Acceptance. 

30-31.  Actual  Receipt 

32-33.  Earnest  or  Part  Payment. 

34-36.  The  Note  or  Memorandum. 
37-38.  Signatupe  of  the  Party. 

39-^0.  Agents  Authorized  to  Sign. 

41.  Effect  of  Noncompliance  with  the  Statute. 


WHAT    CONTRACTS   ARE   WITHIN   THE    STATUTE. 

18.  The  seventeentli  sectioai  of  the  English  statute  of  frauds, 

-fvhich  has  been  substantially  followed  in  most  of  the 
states  and  territories  of  the  United  States,  enacts  that 
"no  contract  for  the  sale  of  any  goods,  wares,  or  mer- 
chandises, for  the  price  of  ten  pounds  sterling,  or  up- 
wards, shall  be  allowed  to  be  good,  except 

(a)  The  buyer  shall  accept  part  of  the   goods  so   sold,   and 

actually  receive  the   same, 

(b)  Or  give  something  in  earnest  to  bind  the  bargain,  or  in 

part  payment, 

(c)  Or   that   some   note    or   memorandum   in   'writing   of    th^ 

said  bargain  be  made  and  signed  by  the  parties  to  be 
charged  by  such  contract,  or  their  agents  thereunto 
laTvfully  authorized." 

19.  The  statute  of  frauds  applies  to  executory  as  x^ell  as  ex- 

ecuted contracts  of   sale. 

20.  The   statute  does  not  apply  to  contracts  for  'work,  labor 

and  materials.  The  rule  for  determining  urhether  the 
contract  is  for  trorh,  labor  and  materials,  or  a  contract 
of  sale,  varies  in  different  jurisdictions, 
(a)  ENGLISH  RULE.  The  English  rule,  which  is  followed 
in  some  states,  is  that  a  contract  w^hereby  the  property 
in  a  chattel  is  to  be  transferred  for  a  price  from  one 
person  to  another  is  a  contract  of  sale,  and  is  -within 
the  statute,  although  the  chattel  is  to  be  the  product 


§§  18-20)       WHAT  CONTRACTS  AUK  WITHIN  THE  STATUTE.  C3 

of  the  xirork,  labor,  mid  luaterials  of  the  pcrxou  who  i* 
to  transfer  the  property. 

(L)  MASSACHUSETTS  RULE.  The  MasBachusetti  rule, 
mrhich  is  followed  in  some  states,  is  the  sauie,  except 
that  if  the  chattel  is  to  bo  niauufactured  csx'cdtt^Iy 
for  the  buyer,  upon  his  special  order,  and  is  not  such 
as  the  seller  iu  his  ordinary  business  nxauufac  tares  for 
the  general  market,  the  contract  is  for  work,  labor, 
and  materials,  and  is  not  within  the  statute. 

(o)  NEAV  YORK  RULE.  The  New  York  rule,  which  is  follow- 
ed in  some  states,  is  that  a  contract  for  the  sale  of  a 
chattel  not  in  existence,  xvhich  the  seller  is  to  manu- 
facture, is  a  contract  for  \i7ork,  labor,  and  materials, 
and  is  not  within  the  statute;  but,  if  the  chattel  is  in 
existence,  the  contract  is  one  of  sale,  and  is  ivithin  the 
statute,  although  the  seller  is  to  atlajit  it  to  the  use  of 
the   buyer. 


The  common  law,  which  rccog^nizcd  the  validity  of  verbal 
contracts  of  sale  of  personal  property  for  any  amount,  and 
however  proved,  was  greatly  modified  by  the  seventeenth  sec- 
tion of  the  statute  of  29  Car.  II.  c.  3,  known  as  the  "statute 
of  frauds,"  which  has  been  quoted  above.  To  reproduce  here 
the  language  of  the  various  similar  enactments  in  the  United 
States  would  be  impossible,^  nor  is  it  necessary  to  do  so,  as 
their  provisions  are  in  the  main  substantially  the  same  as  those 
of  the  English  original.  The  latter  will  therefore  serve  as  the 
basis  of  discussion. 

Executed  and  Executory  Contracts. 

A  question  arose  at  an  early  day,  on  which  in  England  the 
cases  were  conflicting,  whether  the  words  "contract  of  sale," 
as  used  in  the  statute,  applied  to  executory  contracts,  or  merely 
to  executed  contracts,  of  sale.^     The  question  was  settled  in 

1  This  section  seems  not  to  be  In  force  In  Alabama.  Delaware. 
Illinois.  Kentucky,  Louisiana,  New  Mexico,  North  Carolina,  Ohio, 
Pennsylvania,  Rhode  Island,  Tennessee,  Texas,  Virginia,  and  West 
Virginia. 

Some  changes  have  been  made  by  the  English  Sale  of  Goods  Ac<, 
§  4,  and  still  others  by  the  Sah-s  Act.  §  4. 

2  That  executory  contracts  were  not  within  the  statute,  see  Tow- 
ers V.  Osborne,  1  Strange,  oiiC;  Clayton  v.  Andrews,  4  Burrows, 
2101;  Groves  v.  Buck.  3  Maule  &  S.  178.    Contra.  Uondoau  v.  Wyatt. 


64  FORMATION  OF  THE  CONTRACT.  (Ch.  2 

England  by  "Lord  Tenterden's  Act,"  ^  so  called,  which  enacted 
that  the  provisions  of  the  seventeenth  section  "shall  extend  to 
all  contracts  for  the  sale  of  goods  of  the  value  of  ten  pounds 
sterling  and  upwards,  notwithstanding  the  goods  may  be  in- 
tended to  be  delivered  at  some  future  time,  or  may  not  at  the 
time  of  such  contract  be  actually  made,  procured,  or  provided, 
or  fit  or  ready  for  delivery,  or  some  act  may  be  requisite  for  the 
making  or  completing  thereof,  or  rendering  the  same  fit  for  de- 
livery." The  two  enactments  must  be  construed  together,*  and 
Lord  Tenterden's  act  appears  to  be  merely  declaratory  of  the 
true  construction  of  the  statute  of  frauds. °  In  the  United 
States,  it  has  been  universally  held,  without  the  intervention 
of  the  Legislature,  and  in  conformity  with  the  apparent  policy 
and  natural  construction  of  the  statute,  that  it  applies  as  well 
to  executory  as  to  executed  sales.® 

Contract  of  Sale  or  Contract  for  Work,  Labor,  and  Materials — ■ 

English  Rule. 

Another  question  has  arisen  as  to  the  meaning  of  "contract 
of  sale,"  on  which  there  was  long  a  conflict  of  opinion  in  En- 
gland and  on  which  different  conclusions  have  been  reached  in 
the  United  States,  namely,  whether  a  contract  for  the  sale  of 
goods  to  be  afterwards  manufactured  is  a  "contract  of  sale," 
or  a  mere  contract  for  work  and  labor  done  and  materials  fur- 
nished, to  which  the  statute  does  not  apply.''     The  conclusion 

2  H.  Bl.  63;  Cooper  v.  Elston,  7  Term  R.  14;  Garbutt  v.  Watson, 
5  Barn.  &  Aid.  613. 

3  9  Geo.  IV.  c.  14,  §  7.  , 

4  Clialm.  Sale,  8;  Scott  v.  Railway  Co.,  12  Mees.  &  W.  33;  Har- 
man  v.  Reeve,  18  C.  B.  5S7,  25  Daw  J.  C.  P.  257. 

5  Langd.  Cas.  Sales,  1025. 

6  Newman  v.  Morris,  4  Har.  &  McH.  (Md.)  421;  Bennett  v.  Hull,  10 
Johns.  (N,  Y.)  364;  Crooksliank  v.  Burrell,  18  Johns.  (N.  Y.)  58,  9  Am. 
Dec.  187;  Jackson  v.  Covert's  Adm'r,  5  Wend.  (N.  Y.)  139;  Ida  v.  Stan- 
ton, 15  Vt.  685,  40  Am.  Dec.  698;  Waterman  v.  Meigs,  4  Cush.  (Mass.) 
497;  Hight  v.  Ripley,  19  Me.  137;  Edwards  v.  Railway  Co.,  48  Me. 
379;  Atwater  v.  Hough,  29  Conn.  508,  79  Am.  Dec.  229;  Carman  v. 
Smick,  15  N.  J.  Law,  252;  Finney  v.  Apgar,  31  N.  J.  Law,  286; 
Cason  V.  Cheely.  6  Ga.  554;  Mechanical  Boiler-Cleaner  Co.  v.  Kell- 
ner,  62  N.  J.  Law,  544,  43  Atl.  599. 

Sales   Act,   §  4,   makes  changes  to   express   more  accurately  the 
construction  given  by  Lord  Tenterden's  act  and  by  the  courts. 
t  Benj.  Sales,  §§  94-107. 


§§  18-20)      WHAT  CONTRACTS  ARE  WITHIN  TIIK  STATUTE.  «;5 

which  has  finally  been  reached  in  England,  and  in  several 
states  in  America,  is  that  if  the  CDiitract  is  intended  to  result 
in  transferring  for  a  price  a  chattel  it  is  a  contract  for  the  sale 
of  a  chattel,  notwithstanding  that  the  chattel  is  not  in  existence 
at  the  time  of  the  contract,  and  is  to  be  the  product  of  the  labor 
and  materials  of  the  seller,  and  that  unless  the  contract  is  in- 
tended to  result  in  the  transfer  of  a  chattel  the  contract  is  not 
one  of  sale.  This  test  was  first  clearly  stated  and  applied  in  the 
leading  case  of  Lee  v.  Grififin,*  decided  in  the  Queen's  Bench 
in  1861.  That  action  was  brought  by  a  dentist  to  recover  for 
two  sets  of  artificial  teeth  ordered  by  a  deceased  lady  of  whom 
the  defendant  was  executor,  and  it  was  held  that  the  contract 
was  one  of  sale,  and  not  for  work,  labor,  and  materials.  Black- 
burn, J.,  said:  "If  the  contract  be  such  that  it  will  result  in 
the  sale  of  a  chattel,  the  proper  form  of  action,  if  the  employer 
refuses  to  accept  the  article  when  made,  would  be  for  not  ac- 
cepting. But  if  the  work  and  labor  be  bestowed  in  such  a 
manner  as  that  the  result  would  not  be  anything  which  could 
properly  be  said  to  be  the  subject  of  sale,  then  an  action  for 
work  and  labor  is  the  proper  remedy." 

Before  the  case  of  Lee  v.  Grififin,  three  other  principles  had 
been  suggested  in  England  as  affording  a  test  in  such  cases,  and 
as  the  earlier  English  views  have  been  influential  in  shaping  the 
decisions  in  this  country,  and  throw  light  upon  the  question 
involved,  they  may  be  briefly  stated :  First.  It  was  suggested 
that,  if  the  subject-matter  of  the  contract  is  not  in  existence, 
the  contract  is  not  for  the  sale  of  goods."  Thus  in  Groves  v. 
Buck  ^°  it  was  held  on  this  ground  that  a  contract  for  the  sale 
of  oak  pins  to  be  cut  by  the  plaintiff  out  of  slabs  owned  by 
him  was  not  within  the  statute.  Second.  It  was  suggested  that, 
if  the  materials  be  furnished  by  the  employer,  the  contract  is 
for  work  and  labor,  and  not  of  sale;  but  that  if  the  materials 
be  furnished  by  the  workman,  who  makes  the  chattel,  he  can- 
not maintain  work  and  labor,  because  his  labor  is  bestowed 

«  1  Best  &  S.  272.  30  Law  J.  Q.  B.  2.12. 

8  Groves  v.  Buck,  3  Maiile  &  S.  ITS;  Garhutt  v.  Watson.  5  Bnrn. 
&  Aid.  01.1,  per  Abbott  C.  J.;  Rondeau  v.  Wyatt,  2  II.  Bl,  r>3.  per 
I>ord  Lougbborough;  Cooper  v.  Elston,  7  Term  IL  14,  per  Lord  Kea- 
yon,  C.  J. 

10  3  Maule  &  S.  178. 

TiFF.SAi.Es(2n  En.)—.'') 


66  FORMATION  OF  THE   CONTRACT.  (Ch.  2 

on  his  own  materials  and  for  himself.^ ^  The  first  branch  of  this 
rule  falls  within  Lee  v.  Griffin,  because,  if  tlie  materials  are 
furnished  by  the  employer,  there  can  be  no  sale  of  them  ta 
him.  But  the  second  branch  of  the  rule  is  inaccurate,  since  a 
man  may  be  employed  to  do  work  on  his  own  materials  without 
an  intention  on  the  part  of  himself  and  his  employer  to  transfer 
the  property  in  the  completed  article;  for  example,  to  expend 
work  and  materials  in  perfecting  an  invention.^^  Third.  It  was 
suggested  that  the  true  test  was  "whether  the  work  and  labor 
is  the  essence  of  the  contract,  or  whether  it  is  the  materials  that 
are  found."  ^®  But  the  fatal  objection  to  this  test,  as  pointed 
out  by  Benjamin,^*  and  indeed  to  any  test  except  that  applied 
in  Lee  v.  Griffin,  is  that,  however  small  the  relative  value  of  the 
materials  to  the  labor,  as  in  the  case  of  a  painting,  the  em- 
ployer cannot  get  title  to  the  thing  except  through  the  transfer 
of  the  property  in  it  from  the  maker.  And  it  is  the  acquisition 
of  the  thing  by  the  employer  which  the  contract  really  contem- 
plates. It  is  true  that  extreme  cases  may  be  put,  such  as  that 
of  an  attorney  employed  to  draw  a  deed  and  using  his  own 
paper  and  ink,  or  that  of  a  man  sending  a  button  to  be  used  by 
his  tailor  in  making  a  coat.  But  such  trifling  matters  cannot 
be  considered  as  having  entered  into  the  contemplation  of  the 
parties,  nor  as  forming  part  of  the  real  consideration,  and  are 
to  be  disposed  of  by  the  rule,  "De  minimis  non  curat  lex."  ^^ 

Same — Massachusetts  Rule. 

In  the  English  case  of  Garbutt  v.  Watson,^**  where  a  con- 
tract for  the  sale  of  flour  to  be  manufactured  was  held  to  be 
within  the  statute,  Abbott,  C.  J.,  remarked  :  "In  Towers  v.  Os- 
borne [1  Strange,  506],  the  chariot  which  was  ordered  to  be 
made  would  never,  but  for  that  order,  have  had  any  existence. 
But  here  the  plaintiffs  were  proceeding  to  grind  the  flour  for 

11  Smith  V.  Surman,  9  Barn.  &  C.  5G8,  per  Bayley,  J.;  Atkinson 
v.  Bell,  8  Barn.  «&  C.  277,  per  Bayley,  J. 

12  Grafton  v.  Armitage,  2  C.  B.  336,  15  Law  J.  C.  P.  20.  Or  if  a 
farrier  be  employed  professionally,  using  his  own  medicines,  there  is 
no  sale  of  the  medicine,  but  the  contract  is  for  work,  labor,  and 
materials.    Clark  v.  Mumford,  3  Camp.  37;   Langd.  Cas.  Sales,  1039. 

13  Clay  V.  Yates,  1  Hurl.  «&  N.  73,  25  Law  J.  Exch.  237. 
KBenj.  Sales,  §  106. 

loBenj.  Sales,  §  107.  105  Barn.  &  Aid.  613. 


§§  18-20)      WHAT  rONTHACTS  AKK  WITHIN  TIIK  STATUTE.  67 

the  purpose  of  [general  sale,  and  sold  this  flour  to  the  defend- 
ant as  part  of  their  general  stock."  In  accordance  with  this 
dictum,  though  not  expressly  upon  its  authority,  it  was  hdd 
in  Mixer  v.  Ilowarth  ^"  that  a  contract  to  build  a  bugpy  for  the 
defendant  out  of  materials  partly  wrought,  but  nut  put  to- 
gether, was  not  a  contract  of  sale  within  the  statute,  and  Shaw, 
C.  J.,  said  that  "when  the  contract  is  a  contract  of  sale,  either 
of  an  article  then  existing,  or  of  articles  which  the  vendor 
usually  has  for  sale  in  the  course  of  his  business,  the  statute 
applies."  In  Gardner  v.  Joy,^®  on  the  other  hand,  where  the 
defendant  ordered  100  boxes  of  candles,  at  21  cents  a  box, 
which  the  plaintiff  was  to  manufacture,  the  same  judge  held 
that  the  case  was  not  distinguishable  from  Garbutt  v.  Watson. 
And  in  a  later  case  ^'  he  laid  down  the  distinction  that  "when 
a  person  stipulates  for  the  future  sale  of  articles  which  he  is 
habitually  making,  and  which  at  the  time  are  not  niade  and 
finished,  it  is  essentially  a  contract  of  sale,  and  not  a  contract 
for  labor;  otherwise,  when  the  article  is  made  pursuant  to  the 
agreement."  In  Goddard  v.  Binney,^"  in  which  the  facts  are 
similar  to  those  in  Mixer  v.  Howarth,  the  court  refers  to  Lee  v. 
Griffin,  but  adheres  to  the  Massachusetts  rule,  the  correctness 
and  justice  of  which  it  approves. 

Savic — A'cxi'  York  Rule. 

The  principle  acted  on  in  the  earlier  English  cases,  that  a 
contract  for  the  sale  of  an  article  not  in  existence  is  not  within 
the  statute,^ ^   is  the  foundation  of  the  so-called  New  York 

17  21  rick.  (Mass.)  205,  32  Am.  Dec.  25G. 

18  9  Mctc.  (Mass.)  177. 

18  Lamb  v.  Crafts,  12  Mete.  (Mass.)  35G, 

20  115  Mass.  450,  15  Am.  Rep.  112.  See.  also,  Spencer  v.  Cone,  1 
Mete.  (Mass.)  283;  Waterman  v.  Meijis,  4  Cush.  (Mass.)  4'.»7:  Clark 
V.  Nichols,  107  Mass.  547;  Dowling  v.  McKeuney,  124  Mass.  480; 
May  V.  Ward,  134  Mass.  127. 

An  oral  contract  whereby  a  dealer  agreed  to  furnish,  at  a  price 
exceeding  i?50.  bottles  of  specified  sizes,  and  made  of  a  kind  of  glass 
used  only  by  a  certain  manufacturer,  and  according  to  his  raodeLs, 
is  a  contract  for  the  sale  of  goods,  within  the  meaning  of  the  statute 
of  fraiids,  and  not  one  to  furnisli  labor  and  materials.  Smalley  v. 
Ilarablin,  170  Mass.  380,  4'J  N.  E.  02G. 

21  Ante,  p.  65. 


68  FORMATION   OF  THE   CONTRACT.  (Ch.  2 

rule.  Thus  in  Crookshank  v.  Burrell  ^^  it  was  held  that  a  con- 
tract to  manufacture  the  woodwork  of  a  wagon  was  not  within 
the  statute,  and  in  Sewall  v.  Fitch  ^^  the  same  decision  was 
reached  in  regard  to  a  contract  to  sell  rails  which  were  to  be 
made  by  the  seller;  and  the  rule  was  enunciated  that  a  con- 
tract for  the  sale  of  goods  existing  in  solido  is  within  the  stat- 
ute, but  that  a  contract  for  the  sale  of  goods  not  yet  made,  and 
to  be  delivered  at  a  future  day,  is  a  contract  for  work  and  labor, 
and  is  not  within  the  statute.  In  Downs  v.  Ross,^*  however,  a 
limitation  of  this  rule  was  introduced,  and  it  was  held  that  a 
contract  to  sell  wheat,  part  of  which  was  to  be  cleaned  and 
part  threshed,  was  within  the  statute,  Bronson,  J.,  observing 
that,  "if  the  thing  exist  at  the  time  in  solido,  the  mere  fact  that 
something  remains  to  be  done  to  put  it  in  a  marketable  con- 
dition will  not  take  the  contract  out  of  the  operation  of  the 
statute."  The  rule  ^^  and  the  limitation  ^^  have  been  followed 
in  the  later  New  York  cases.  The  cases  are  discussed  and 
reconciled  in  Cooke  v.  Millard,^'^  in  which  it  was  held  that  a 
contract  for  the  sale  of  lumber  which  the  seller  was  to  dress 
and  put  in  condition  to  fill  the  order  of  the  buyer  was  within 
the  statute.  The  rule  is  there  stated  that  an  agreement  for  the 
sale  of  a  commodity  not  in  existence,  but  which  the  seller  is  to 
manufacture  or  put  in  condition  to  be  delivered,  such  as  flour 
from  wheat  not  yet  ground,  or  nails  to  be  made  from  iron  be- 
longing to  the  manufacturer,  is  not  a  contract  of  sale;  but 
that,  when  the  chattel  is  in  existence,  the  contract  should  be 
deemed  to  be  one  of  sale,  even  though  it  may  have  been  order- 
ed from  a  seller  who  is  to  do  some  work  upon  it  to  adapt  it  to 
the  use  of  the  purchaser.    Dwight,  C,  who  delivered  the  opin- 

22  18  Johns.  (N.  Y.)  58,  9  Am.  Dec.  187. 

23  8   Cow.    (N.  Y.)   215. 

24  23  Wend.  (N.  Y.)  270. 

2  5  Robertson  v.  Vaughn,  5  Sandf.  (N.  Y.)  1;  Bronson  v.  Wiman,  10 
Bart).  (N.  Y.)  406;  Parker  v.  Schenck,  28  Barb.  (N.  Y.)  38;  Parsons 
V.  Ivoucks,  48  N.  Y.  17,  8  Am.  Ptep.  517;  Warren  Chemical  &  Mfg.  Co. 
V.  Holbrook.  118  N.  Y.  586.  23  N.  E.  908,  16  Am.  St.  Rep.  788.  See 
Hinds  V.  Kellogg  (Com.  PI.  N.  Y.)  13  N.  Y.  Supp.  922. 

26  Smith  V.  Railroad  Co.,  *43  N.  Y.  180;  Cooke  v.  Millard,  65 
N.  Y.  352,  22  Am.  Rep.  619;  Alfred  Shrimpton  &  Sons  v.  Dworsky, 
2  Misc.  Rep.  123,  21  N.  Y.  Supp.  461. 

27  65  N.  Y.  352,  22  Am.  Rep.  619. 


§§  18-20)       WHAT  CONTRACTS  AKK  W  ITIIIN  TIIK  STATUTE.  6'J 

ion.  observed  in  regard  to  Lee  v.  Grifiin  lliat.  if  the  subject 
were  open,  no  more  convenient  rule  than  that  of  Lee  v.  Griffin, 
which  is  at  once  so  philosophical  and  comprehensible,  could  be 
adopted,  but  that  it  was  too  late  to  adopt  it  in  full. 

Same — Rule  Elsczvhcrc  in   United  States. 

It  would  be  difiicult,  if  not  impossible,  to  classify  the  Ameri- 
can cases  as  falling  within  the  English,  the  New  York,  or  the 
Massachusetts  rule.-®  The  latter  rule  has,  however,  met  with 
most  general  appro vab^"  and  has  in  a  recent  case  been  express- 

28  See  Cason  v.  Clieely,  6  Ga.  551 ;  Bird  v.  MuliliubrinU,  1  Rich. 
Law  (S.  C.)  199;  Allen  v.  Jarvis.  20  Conn.  38;  Atwater  v.  Il()u;;li.  29 
Oonn.  508.  79  Am.  Deo.  229;  Ellis  v.  Railroad  Co.,  7  Colo.  Ajip.  350, 
43  Pac.  457;  Ileiatz  v.  Burkliard.  29  Or.  55,  43  Pae.  800.  31  L.  R. 
A.  508,  54  Am.  St.  Rep.  777;  Pu^'et  Sound  Mach.  Depot  v.  Ki>,'b.v,  13 
Wasb.  204,  43  Pac.  39.  In  Prescott  v.  Locke,  51  N.  H.  9^1.  12  Am. 
Rop.  55,  it  was  held  that  a  contract  to  buy  what  spokes  [)IaintiCr 
should  saw  at  his  mill  was  within  the  statute,  and  the  opinion  cites 
Lee  V.  Griffin,  1  Best.  &  S.  272,  30  Law  J.  Q.  B.  252  ;  but  the  court  draws 
a  distinction  like  that  at  one  time  supsested  in  England  (supra)  be- 
tween couti'acts  of  sale  and  those  in  which  the  labor  and  skill  of  the 
workman  are  the  essence  of  the  contract.  See,  also.  Pitkin  v.  Noyes. 
48  N.  II.  2JM,  97  .Vm.  Dec.  615,  2  Am.  Rep.  218.  Cf.  Gilnian  v.  Hill.  30 
N.  II.  311.  See.  also.  Hight  v.  Ripley,  19  Me.  137;  Abbott  v.  Gil- 
christ, 38  Me.  200;  Edwards  v.  Railway,  48  Me.  379.  54  Me.  105; 
Crockett  v.  Scribner.  04  Me.  447.  A  contract  to  p:iint  a  portrait  is 
not  witliin  the  statute.  Turner  v.  Mason,  05  Mich.  002,  32  N.  W. 
840. 

"From  a  very  early  period  it  has  been  the  settled  law  of  Mary- 
land *  *  *  that,  when  work  and  labor  are  to  be  bestowed,  by 
the  vendor  upon  the  article  sold  before  it  is  to  be  delivere<I.  the 
contract  is  not  within  the  statute;  and  the  reason  is  that  when 
work  and  labor  are  necessary  to  prepare  :\n  article  for  delivery, 
the  work  and  labor  to  be  done  by  the  vendor  form  part  of  tlie  con- 
sideration of  the  contract,  and.  as  these  are  not  within  the  statute, 
the  sale  is  not  a  sale  of  goods,  wares,  and  merchandise."  Bagby  v. 
Walker,  78  Md.  239.  27  Atl.  1033.  See,  also,  Eichelberger  v.  Mc- 
Cauley,  5  Har.  &  .7.  (Md.)  213.  9  Am.  Dec.  514;  Rentch  v.  Ix)ng.  27 
Md.  188. 

2»  Finney  v.  Apgar,  31  N.  .7.  Law,  271  (cf.  Pawelski  v.  Hargreaves, 
47  N.  .7.  Law,  334,  54  Am.  Rep.  102i;  Meincke  v.  Falk,  55  Wis.  427, 

13  N.  W.  545,  42  Am.  Rep.  722.  distinguishing  Hardell  v.  McOlure.  1 
Chand.  (Wis.)  271.  2  Pin.  2.SD.  in  which  the  modern  aiglish  rule  was 
approved;  O'Xeil  v.  Mining  Co..  3  Nev.  141;  Ornian  v.  Hager,  3  N. 
M.  331,  9  Pac.  303;  Flyiin  v.  Dougherty,  91  Cal.  (509.  27  Pac.  1080. 

14  L.  R.  A.  230;    Brown  &  Haywood  Co.  v.  Wundcr,  04  Minn.  400. 


70  FORMATION   OF   THE   CONTRACT.  (Ch.  2 

ly  adopted  in  Missouri.^"  In  some  states  an  attempt  has  been 
made  to  settle  the  question  by  statute,  as  in  Iowa,  where  it  is 
provided  that  where  the  property  sold  is  not,  at  the  time  of  the 
contract,  owned  by  the  vendor  and  ready  for  delivery,  but  labor, 
skill,  or  money  are  necessary  to  be  expended  in  producing  or 
procuring  the  same,  the  statute  shall  not  apply.^^ 

Chattel  Intended  for  a  Fixture. 

Contracts  for  furnishing  an  article,  and  fixing  it  to  the  free- 
hold, are  to  be  distinguished  from  contracts  of  sale.^^  In  such 
cases  the  intention  is  not  to  make  a  sale  of  movables,  but  to 
make  improvements  on  the  real  property  of  which  the  article 
furnished,  upon  being  affixed,  becomes  a  part ;  and  the  consid- 
eration to  be  paid  is,  not  for  a  transfer  of  chattels,  but  for  work 

67  N.  W.  357,  32  L.  R.  A.  593  (cf.  Phipps  v.  McFarlane,  3  Minn. 
109  [Gill.  61]  74  Am.  Dec.  743;  Brown  v.  Sanborn,  21  Minn.  402; 
Rnssell  v.  Railway  Co.,  39  Minn.  145,  39  N.  W.  302) ;  Meclianical 
Boiler-Cleaner  Co.  v.  Kellner,  62  N.  J.  Law,  544,  43  Atl.  599;  Wil- 
liams-Haywood Shoe  Co.  V.  Brooks,  9  Wyo.  424,  64  Pac.  342;  Gross 
V.  Heckert,  120  Wis.  314,  97  N.  W.  952. 

A  contract  by  which  defendants  agree  to  furnish  a  monument  for 
a  certain  amount,  to  be  erected  by  a  state  on  a  battlefield,  is  not  a 
contract  for  sale  of  goods,  within  the  statute  of  frauds,  though 
defendants  are  not  bound  to  bestow  their  personal  skill  and  labor 
thereon,  but  may  get  others  to  make  it  for  them.    Forsyth  v.  Mann, 

68  Vt.  116,  34  Atl.  481,  32  L.  R.  A.  788. 

The  court  says  that  the  case  comes  clearly  within  the  Massachu- 
setts rule,  which  it  regards  as  preferable,  and  that  it  makes  no  dif- 
ference that  the  defendants  were  not  bound  to  bestow  their  personal 
skill  and  labor  on  the  monument,  but  were  at  liberty  to  get  others  to 
make  it  for  them,  making  the  special  order  the  test.  Cf.  Ellison  v. 
Brigham,  38  Vt.  64. 

The  Massachusetts  rule  is  adopted  by  Sales  Act,  §  4  (2). 

30  Pratt  V.  Miller,  109  Mo.  78,  18  S.  W.  965,  32  Am.  St.  Rep.  656; 
Burrell  v.  Highleyman,  33  Mo.  App.  183;  Pike  Electric  Co.  v.  Drug 
Co.,  42  Mo.  App.  272.  Also  in  Wolfenden  v.  Wilson,  33  U.  C.  Q.  B. 
442. 

31  Where  defendant  contracted  orally  to  sell  and  deliver  to  plain- 
tiff, in  a  marketable  condition,  certain  growing  oats,  the  sale  was 
not  within  the  exception.  Mighell  v.  Dougherty,  86  Iowa,  480,  53 
N.  W.  402,  17  L.  R.  A.  755,  41  Am.  St.  Rep.  511.  See,  also,  Lewis  v. 
Evans,  108  Iowa,  290,  79  N.  W.  81;  Dierson  v.  Petersmeyer,  109 
Iowa,  233,  80  N.  W.  389;  Flynn  v.  Dougherty,  91  Cal.  669,  27  Pac. 
1080,  14  L.  R.  A.  2,30. 

3  2  Benj.  Sales,  §  108. 


i 


§§  18-20)      WHAT  CONTRACTS  AKE  WITHIN  TlIK  STATUTE.  71 

and  labor  done  and  materials  furnished  in  adding  something 
to  the  land.^^ 

Similarly,  a  contract  to  make  improvements  upon  a  chattel 
belonging  to  the  employer  is  a  contract  for  work,  labor,  and 
materials.'* 

Auction  Sales. 

Although  it  was  questioned  by  Lord  Mansfield  whether  the 
statute  applied  to  sales  of  goods  at  auction,"  it  is  universally 
held  that  it  applies  to  them  as  well  as  to  private  sales.'' 

Contract  for  Exchange. 

A  contract  of  exchange  or  barter  is  regarded  as  a  contract 
of  sale  within  this  section." 

Contract  for  Resale. 

A  stipulation  in  a  contract  of  sale  that  the  seller  may  repur- 
chase or  that  the  buyer  may  resell  is  not  to  be  regarded  as  an 
independent  contract  of  sale,  and,  if  the  original  contract  has 
been  taken  out  of  the  statute,  by  delivery  of  the  goods  or  other- 
wise, is  not  within  the  statute." 

33  Tripp  V.  Armitage,  4  Mees.  &  W.  087;  Clark  v.  Buhner,  11  Meea. 
&  W.  24:'.;  Scales  v.  AViley,  G8  Vt.  30,  33  Atl.  771. 

3  4  Anglo-Egryptlan  Nav.  Co.  v.  Rennle,  L.  R.  10  C.  P.  271. 

85  Simon  v.  Motivos,  3  Burrows,  1921,  1  Wm.  Bl.  599. 

38  Hinde  v.  Whitehouse,  7  East,  5uS,  per  I>ord  Ellenl)orough;  Ken- 
worthy  V.  Schofield,  2  Barn.  &  0.  945;  Davis  v.  Rowell,  2  Plck. 
(Mass.)  G4,  13  Am.  Dec.  398;  Morton  v.  Dean,  13  Mete.  (Mass.)  385; 
Pike  V.  Balch,  38  Me.  302,  Gl  Am.  Dec.  248;  Johnson  v.  Buck,  35 
N.  J.  Law,  338,  10  Am.  Rep.  243;  Davis  v.  Robertson,  1  Mill.  Const. 
(S.  C.)  71,  12  Am.  Dee.  611 ;  SanderHn  v.  Trustees,  R.  M.  Charlt.  (Ga.) 
551. 

37  Ash  V.  Aldrich,  67  N.  H.  581,  39  Atl.  442;  Gorman  v.  Brossard, 
120  Mich.  611,  79  N.  W.  903.  And  see  Dowling  v.  McKenney,  124 
Mass.  478;   Browne,  St.  Frauds,  §  203. 

A  contract  to  deliver  goods  In  payment  of  a  debt  Is  within  the 
statute.  Sawyer  v.  Ware,  30  Ala.  675;  Gorman  v.  Brossard,  supra. 
Contra:    Woodford  v.  Patterson,  32  Barb.  (N.  Y.)  030. 

88  Williams  v.  Burgess,  10  Adol.  &  E.  400;  Fay  v.  Wheeler,  44 
Vt.  292;  Johnston  v.  Trask,  116  N.  Y.  130,  22  N.  li  SH,  5  L.  It  A_ 
630,  15  Am.  St.  Rep.  394. 


72  FORMATION  OF  THE   CONTRACT.  (Ch.  2 


WHAT   ARE    GOODS,    WARES,    AND    MERCHANDISE. 

21<    "Goods,  nrares,  and  merchandise"  compreliend: 

(a)  All  corporeal  movable  property. 

(b)  In  the  United  States,  generally,  (but  not  in  England),  in- 

corporeal property,   such  as   shares,   promissory   notes, 
bank  bills,  etc. 

(c)  Fructus   naturales  and  fructus   industriales,   the   o^wner- 

ship   vrhereof  is  to  pass  to  the  buyer  after   severance 
thereof  from  the  soil. 

(d)  Fructus    industriales    (perhaps)    also    ivhen    such    owner- 

ship is  to  pass  before  severance. 

22.    "Goods,  ivares,  and  merchandise"  do  not  comprehend: 

(a)  Fructus    naturales,    the    owrnership    ivhereof    is    to    pass 

before  severance   [and  from  the  further  g:roivth  iwhere- 
of  the  buyer  is  to  derive  benefit]. 3 9 

(b)  Tenants'  fixtures  sold  xi^hile  unsevered. 

Incorporeal  Property — Choses  in  Action. 

In  England  the  term  "goods,  wares,  and  merchandise"  has 
been  limited  to  corporeal  movable  property,  and  is  held  not  to 
include  shares,  stock,  documents  of  title,  choses  in  action,  and 
other  incorporeal  rights  and  property.***  In  the  United  States, 
however,  the  term  is  as  a  rule  held  to  include  incorporeal  prop- 
erty, such  as  stock,*^  bills  and  notes,*^  and  bank  bills.*^    "The 

8  9  If  Marshall  v.  (jreen,  1  C.  P.  Div.  35,  and  the  similar  decisions 
in  this  countiy,  be  good  law,  the  words  within  the  brackets  must 
stand.     See  post,  p.  75. 

4  0  Humble  v.  Mitchell,  11  Adol.  &  E.  205;  Knight  v.  Barber,  16 
JMees.  &  W.  66,  16  L.  J.  Exch.  18;  Bradley  v.  Holdsworth,  3  Mees. 
&  W.  422;  Duncuft  v.  Albrecht,  12  Sim.  189;  Colonial  Bank  v.  Whiu- 
ney,  30  Ch.  Div.  261,  286;  Benj.  Sales,  §  111.  See  Evans  v.  Davies 
[1893]  2  Ch.  Div.  216. 

4iTisdale  v.  Harris,  20  Pick.  (Mass.)  9;  Boardman  v.  Cutter,  128 

42  Baldwin  v.  Williams,  3  Mete.  (Z^Iass.)  367;  Gooch  v.  Holmes,  41 
Me.  523;  Pray  v.  Mitchell,  GO  Me.  430,  435;  Hudson  v.  Weir,  29  Ala. 
294;  Greenwood  v.  Law,  55  N.  J.  Law,  168,  26  Atl.  134,  19  L.  R. 
A.  688  (bond  and  mortgage).  Contra,  Whittemore  v.  Gibbs,  24  N. 
H.  484;  Beers  v.  Crowell,  Dud.  (Ga.)  28  (United  States  treasury 
checks  on  Bank  of  United  States) ;   Vawter  v.  Griffin,  40  Ind.  GOO. 

4  3  Biggs  V.  Magruder,  2  Cranch,  C.  C.  (U.  S.)  143,  Fed.  Cas.  No. 
11.828;  Gooch  v.  Holmes,  41  Me.  523.  Gold  coin,  when  the  subject 
of  a  contract  of  sale,  is  within  the  statute.  Peabody  v.  Speyers,  56 
N.  Y.  230. 


i'S  21-22)       WHAT  ARE  GOODS,  WARKS,  AND  MKIUriANDISE.       73 

words  of  tlie  statute,"  it  has  been  said,  "have  never  Itecn  ex- 
tended by  any  court  beyond  securities  which  are  sul>jects  of 
common  sale  and  barter,  and  which  have  a  visible  and  palpable 
form";  **  but  some  courts  have  held  a  simple  contract  debt  to 
be  within  the  statute/*  In  some  states  a  broader  rule  is  re- 
quired by  the  language  of  the  statute,  as  in  New  York,  Califor- 
nia, Wisconsin,  and  Minnesota,  where  the  provision  expressly 
includes  choses  in  action, ■*"  and  in  Florida,  where  it  uses  the 
term  "personal  property."  *'' 

Interest  in  Land — fourtli  Section  of  the  Statute. 

The  fourth  section  of  the  statute  of  frauds,  which  has  been 
substantially  enacted  in  most  states  of  this  country,  provides 
that  "no  action  shall  be  brought  *  *  *  upon  any  contract 
or  sale  of  lands,  tenements,  or  hereditaments,  or  any  interest  in 
or  concerning  them,  *  *  *  unless  the  agreement  upon 
which  such  action  shall  be  brought,  or  some  memorandum  or 
note  thereof,  shall  be  in  writing  and  signed  by  the  party  to  be 
charged  therewith,  or  some  other  person  thereunto  by  him  law- 
fully authorized."     When  a  contract  of  sale  is  made,  the  sub- 


Mass.  388;  North  v.  Forest,  15  Conn.  400;  Pray  v.  Mitchell.  GO  Me. 
430;  Fine  v.  Hornsby,  2  Mo.  App.  Gl;  Bernhardt  v.  Walls.  29  Mo. 
App.  20G.  See  Meeban  v.  Sharp.  151  Mass.  5G4,  24  N.  E.  907;  Green 
V.  Brookins,  23  Mich.  48,  54,  9  Am.  Uep.  74;  Gadsden  v.  Lance,  Mc- 
Mul.  Eq.  (S.  C.)  87,  37  Am.  Dec.  548;  RoRors  v.  Burr.  105  Ga.  432. 
.".1  S.  E.  4.3S.  70  Am.  St.  Rep.  50.  And  see  Banta  v.  City  of  Chk-api. 
172  111.  204.  50  N.  E.  233.  40  L.  R.  A.  Gil.  Contra:  Webb  v.  Rail- 
road Co..  77  Md.  92,  2G  Atl.  113.  39  Am.  St.  Rep.  39<j,  which  follows 
the  English  rule,  notwithstandinj:  a  dictum  to  the  contrary  iu  Col- 
vin  V.  Williams.  3  Har.  &  J.  (Md.)  38.  5  Am.  Dec.  417. 

**  Somerby  v.  Buntin,  118  Mass.  279,  19  Am.  Rep.  459.  per  Gray. 
C.  J.    See,  also,  Meeban  v.  Shan\  supra. 

An  invention,  before  letters  patent  are  obtained.  Is  not  within 
the  statute.  Somerby  v.  Buntin.  supra  ;  Blakeney  v.  Goodo.  .30  Ohio 
St.  350;  D.Tlzell  v.  Manufacturing  Co..  149  U.  S.  315.  13  Sup.  Ct. 
SSG.  37  L.  Ed.  749.  Cf.  Jones  v.  Reynolds,  120  N.  Y.  213.  24  N.  E. 
279. 

••5  "Walker  v.  Supple.  54  Ga.  179  (accounts);  French  v.  Schooi>- 
maker.  <;9  N.  J.  Law.  6,  54  Atl.  225. 

4«Artcher  v.  Zeh.  5  mil  (N.  Y.)  200;  Peabody  v.  Speyer.«:.  :,i\  N. 
Y.  2,30;  Allen  v.  Ajruirre.  7  N.  Y.  543;  Mayer  v.  Child.  47  C.-il.  142; 
Spear  v.  Bach.  82  Wis.  192.  52  N.  W.  97.     See  Sales  Act.  §  4  (1). 

*^  Southern  Life  Ins.  &  Trust  Co.  v.  Cole.  4  Fla.  359. 


74  FORMATION  OF  THE   CONTRACT.  (Ch.  2 

ject-matter  of  which  is  something  attached  to  the  soil,  the  ques- 
tion frequently  arises  whether  such  sale  is  of  an  interest  in  land, 
and  hence  whether  it  is  within  the  fourth  section,  or  whether  it 
is  a  sale  of  goods,  wares,  and  merchandise,  and  hence  within 
the  seventeenth  section,  or  whether  it  is  neither.  The  question 
which  section  governs  may  be  of  vital  importance,  because  the 
fourth  section  requires  a  written  memorandum  or  note  under 
all  circumstances  and  whatever  the  amount,  while  under  the 
seventeenth  section  the  necessity  of  a  writing  does  not  exist 
if  the  amount  is  under  £10,  or  if  the  provisions  in  respect  of 
performance  or  payment  have  been  satisfied. 

Fructiis  Naturales  and  Pructus  Industriales. 

Inasmuch  as  "goods,  wares,  and  merchandise"  comprehends 
5,11  movable  corporeal  property,  an  executory  contract  for  the 
sale  of  a  thing  attached  to  the  soil,  for  example,  trees,  if  the 
thing  is  to  be  severed  from  the  soil  before  the  sale,  is  within 
the  seventeenth  section,  and  is  not  within  the  fourth  section,  of 
the  statute;  for,  though  the  subject  of  sale  be  an  interest  in 
land  when  the  contract  is  made,  it  will,  by  severance  from  the 
soil,  become  "goods,  wares  and  merchandise"  when  the  sale 
is  executed.**  "The  agreement  is  that  the  thing  shall  be  ren- 
dered into  goods,  and  then  in  that  state  sold.  It  is  an  executory 
agreement  for  the  sale  of  goods  not  existing  in  that  capacity 
at  the  time  of  the  contract."  *^  But,  if  the  contract  contem- 
plates a  present  sale,  a  different  question  arises,  which  is  to  be 
determined  in  the  case  of  growing  crops  upon  a  somewhat  arti- 
ficial distinction. 

48  Smith  V.  Surman,  9  Barn.  &  O.  561  (potatoes) ;  Washbourn  v. 
Burrows,  1  Exch.  107,  per  curiam;  Watts  v.  Friend,  10  Barn.  &  C. 
446 ;  Parker  v.  Staniland,  11  East,  362 ;  Sainsbury  v.  Matthews,  4 
Mees.  &  W.  343;  Whitmarsh  v.  Wall^er,  1  Mete.  (Mass.)  313;  Cla- 
flin  V.  Carpenter,  4  Mete.  (Mass.)  580',  38  Am.  Dec.  381;  Nettletou  v. 
Sikes,  8  Mete.  CNlass.)  34;  Drake  v.  Wells,  11  Allen  (Mass.)  141; 
Fletcher  v.  Livingston,  153  Mass.  388,  390,  26  N.  E.  1001;  Banton  v. 
Shorey,  77  Me.  48,  51;  Killmore  v.  Howlett,  48  N.  Y.  569;  Boyce  v. 
Washburn,  4  Hun  (N.  Y.)  792;  Upson  v.  Holmes,  51  Conn.  500.  See, 
also,  Slocum  v.  Seymour,  36  N.  J.  Law,  138,  13  Am.  Rep.  432.  per 
Bedle,  J.;  Green  v.  Railroad  Co.,  73  N.  C.  524;  Owens  v.  Lewis,  46 
Ind.  488,  15  Am.  Rep.  295;  Cool  v.  Lumber  Co.,  87  Ind.  531;  Benj. 
Sales,  §§  118,  119;   Blackb.  Sales,  p.  5. 

49  Blackb.  Sale,  p.  9. 


§§  21-2-2)       WHAT  AUE  GOODS,  WARES,  AND  MEUCIIANDISE.       75 

A  distinction  exists  between  wliat  are  known  as  "fructus 
naturales,"  which  are  the  natural  product  of  the  soil,  as  trees 
and  natural  grass,  and  "fructus  industriales,"  or  cniblenients, 
which  are  the  product  of  annual  labor,  as  wheat  or  potatoes, 
and  which  the  tenant  of  an  estate  of  uncertain  duration  had 
the  right  to  take,  if  growing  at  the  determination  of  his  estate. 
Fructus  naturales  are  an  interest  in  land,  but  fructus  indus- 
triales are  chattels,  and  not  an  interest  in  land.  From  the  char- 
acter of  fructus  naturales  as  an  interest  in  land,  it  follows  that 
an  agreement  vesting  a  present  interest  in  them  although  in 
contemplation  of  immediate  severance,  is  within  the  fourth  sec- 
tion. Such,  at  least,  is  the  prevailing  rule  in  this  country,*" 
and  was  supposed  to  be  the  law  under  all  circumstances  in 
England  '^^  until  the  case  of  Marshall  v.  Green, "^  in  1875,  in 
which  it  was  held  that  a  sale  of  standing  timber,  to  be  cut  by 
the  purchaser  as  soon  as  possible,  was  within  the  seventeenth, 
and  not  within  the  fourth,  section.  It  is  said  by  the  English 
editors  of  Benjamin  ^^  that  this  decision  is  open  to  criticism, 
and  must  be  supported  either  on  the  ground  that  title  was  not 
to  pass  until  severance,  which  would  bring  it  within  the  prin- 
ciple governing  executory  contracts  of  sale  above  stated,  or  that 

»o  White  V.  Foster,  102  Mass.  375;  Putney  v.  Day,  G  N.  II.  130, 
25  Am.  Dec.  470;  Olmstead  v.  Niles,  7  N.  H.  522;  Kiiifisley  v.  Hol- 
brook,  45  N.  H.  313,  SO  Am.  Dec.  173;  Howe  v.  Batcbelder,  49  N. 
H.  204;  Green  v.  Armstrong,  1  Denio  (N.  Y.)  550;  Thomson  v.  Poor, 
57  Hun  (N.  Y.)  2S8,  10  N.  Y.  Supp.  597;  Id.,  67  Hun  (N.  Y.)  053, 
22  N.  Y.  Supp.  570;  Slocum  v,  Seymour,  3G  N.  J.  Law.  138,  13  Am. 
Rep.  432;  Owens  v.  Lewis,  40  Ind.  4S;).  15  Am.  Rep.  295;  Llllie  v. 
Dunbar,  02  Wis.  198,  22  N.  W.  407;  Hirtb  v.  Graham.  50  Ohio  St. 
57,  33  N.  E.  90,  19  L.  R.  A.  721,  40  Am.  St.  Rep.  641;  Stuart  v.  Peu- 
nls.  91  Va.  088,  22  S.  E.  .509;  Clarlc  v.  Guest,  54  Ohio  St.  2t>s.  43 
N.  E.  S02;  Walton  v.  Lowrey,  74  Miss.  484,  21  South.  243;  Seymour 
V.  Cushway,  lOO  Wis.  580,  76  N.  W.  769,  69  Am.  St.  Rep.  957;  Kirke- 
by  V.  Erickson,  90  Miun.  299,  96  N.  W.  705.  101  Am.  St.  Rep.  411; 
Kileen  v.  Kennedy.  90  Minn.  414,  97  N.  W.  126;  Fluharty  v.  Mills. 
49  W.  Va.  446,  3S"  S.  E.  521;  Drake  v.  Howell,  133  N.  C.  162,  45  S. 
E.  539. 

01  Rodwell  V.  Phillips,  9  Mees.  &  W.  .")01;  Crosby  v.  Wadswortb. 
■6  East.  602;  Teal  v.  Auty,  2  Brod.  &  B.  99  (trees);  Scorell  v.  Box- 
a\\,  1  Younge  &  J.  396.     Contra:    Anonymous,  1  Ixl.  Rnym.  182. 

52  1  C.  P.  Div.  3.'». 

83  Benj.  Sales,  §  126.     See,  also.  Kerr.  Dig.  Law  Sales,  p.  5  (s). 


76  FORMATION  OF  THE  CONTRACT.  (Ch.  2 

it  must  be  taken  to  have  introduced  the  Hmitation  that,  even 
when  the  property  in  fructus  naturales  passes  before  severance, 
if  the  intention  is  that  the  buyer  is  to  derive  no  benefit  from 
their  further  growth,  the  sale  is  within  the  seventeenth,  and 
not  within  the  fourth,  section.  Apparently  the  judges  who  de- 
cided Marshall  v.  Green  took  the  latter  view  of  the  case,  and 
the  same  has  been  taken  by  some  courts  in  the  United  States.^* 
In  a  later  English  case,*  Chitty,  J.,  refused  to  apply  the  limita- 
tion to  a  contract  to  sell  building  materials  in  a  building,  to  be 
removed  v/ithin  two  months  by  the  buyer,  and  his  criticisms 
apply  equally  to  Marshall  v.  Green  and  to  the  American  cases 
referred  to.  "It  is  sold,"  he  says,  "as  building  materials,  and,  if 
the  intention  of  the  parties  prevailed,  it  might  mean  that  it  is 
sold  as  a  chattel,  but  the  point  still  is  that  it  is  not  a  chattel  at 
the  time  of  the  sale,  and  the  statute  of  frauds,  so  far  as  I  can 
see,  does  not  enable  parties  to  say :  'We  will  agree  to  treat  this 
thing  as  a  chattel,  when  in  point  of  law  it  is  a  hereditament.'  "  ^^ 
In  some  states,  where  the  above  limitation  of  the  rule  is  not 

54  sterling  v.  Baldwin,  42  Vt.  306;  McClintock's  Appeal,  73  Pa. 
365;  Cain  v.  McGuire,  13  B.  Mon.  (Ky.)  340;  Byassee  v.  Reese,  4 
Mete.  (Ky.)  372,  83  Am.  Dec.  481.  See,  also,  Bostwick  v.  Leach,  3 
Day  (Conn.)  476;  Purner  v.  Piercy,  40  Md.  212,  17  Am.  Rep.  591; 
Smith  V.  Bryan,  5  Md.  141,  59  Am.  Dec.  104;  Foster  v.  Mabe,  4  Ala. 
402,  37  Am.  Dec.  749;  Scoggin  v.  Slater,  22  Ala.  687;  Leonard  v. 
:siedford,  85  Md.  666,  37  Atl.  365,  37  D.  R.  A.  449;  Tilford  v.  Dotson, 
106  Ky.  755,  51  S.  W.  583;  Prater  v.  Campbell,  110  Ky.  23,  60  S.  W. 
918.  If  the  timber  is  to  be  taken  off  by  the  purchaser  without  speci- 
fication as  to  time,  the  contract  is  within  the  fourth  section.  Huff 
V.  McCauley,  53  Pa.  206,  91  Am.  Dec.  203;  Pattison's  Appeal,  61  Pa. 
294,  100  Am.  Dec.  637;  Miller  v.  Stevens,  100  INIass.  518,  1  Am.  Rep. 
139.  97  Am.  Dec.  123. 

*Lavery  v.  Pursell,  39  Ch.  Div.  508. 

5  5  Sales  Act,  §  76  (1),  following  the  English  act,  declares  that 
"goods"  includes  "things  attached  to  or  forming  part  of  the  land  which 
are  agreed  to  be  severed  before  sale  or  under  the  contract  of  sale." 
So  far  as  concerns  fructus  naturales,  buildings  sold  as  materials,  and 
fixtures,  which  are  agreed  to  be  severed  before  sale,  this  declares 
what  has  been  the  general  rule.  The  provision  that  these  things  are 
goods  when  agreed  to  be  severed  "under  the  contract  of  sale"  seems 
equivalent,  as  has  been  pointed  out,  to  declaring  that  under  a  con- 
tract of  sale  they  are  to  be  deemed  goods,  whether  the  property  is 
to  pass  before  or  after  severance,  and  changes  the  law  with  regard 
to  buildings  sold  as  materials  and  fructus  naturales.  Benj.  Sales 
(5th  Eng.  Ed.)   190. 


§§  21-22)       WHAT  AUK  GOODS,  WAUKS,  AM)  MKK(  II  A  NDI"-!:.        77 

recognized,  the  courts  construe  contracts  for  tlic  sale  of  trees 
and  other  fructus  naturales,  even  if  the  trees  arc  to  he  cut  by 
the  purchaser,  as  executory  contracts  in  which  the  title  is  not 
to  pass  until  severance  and  conversion  into  personalty  and  by 
wiiich  the  purchaser  has  until  severance  only  a  revocable  license 
to  enter  and  remove  the  trees.'" 

From  the  character  of  fructus  induslrialcs  as  chattels,  on  the 
other  hand,  it  follows  that  a  sale  of  them  is  not  within  the 
fourth  section. '^^  But,  though  they  are  chattels,'*  it  has  been 
said  to  be  an  open  question  whether  they  are  "goods,  wares, 
and  merchandises,"  and  consequently  within  the  seventeenth 


60  White  V.  Foster,  102  Mass.  .",7.">.  'MU.  and  .M.i<s;i(lnist"tts  cases 
cited  In  note  48,  supra.  Fslier.  Sah^s.  §  Of?.  TTie  ^TaRsnohiisettR  pases 
construe  in  this  way  contracts  which  in  most  jurisdictions  would  be 
construed  as  intended  to  pass  title  before  severance,  and  as  hence 
■o-ithin  the  fourth  section,  but  the  peculiarity  of  the  Massaclnisetts 
cases  concerns  rather  the  construction  of  the  contract,  and  not  the 
application  of  the  statute.  If  the  contract  grants  an  estate  in  the 
trees  while  growing,  the  fourth  section  applies.  White  v.  Foster, 
supra. 

Whore  the  contract  limits  the  time  within  which  the  purchaser 
may  remove  the  trees  to  a  certain  time,  or  by  implication  to  a  rea- 
sonable time,  it  is  generally  held  that,  if  the  time  expires  witlmut 
removal,  the  rights  of  the  purchaser  in  the  timber,  supposing  there 
was  an  enforceable  contract,  are  terminated.  Macomber  v.  Ifailmail 
Co..  108  Mich.  401,  GG  N.  W.  37G,  32  L.  R.  A.  102.  G2  Am.  St.  Rej).  713: 
Bunch  v.  Lumber  Co.,  134  N.  C.  IIG,  4G  S.  E.  24.  Contra:  Ilalstcail  v. 
Jessup,  150  Ind.  So,  40  N.  E.  821  (wliere  there  is  no  forfeiture  clause 
In  the  contract).  Cf.  Irons  v.  Webb.  41  N.  J.  Law,  20,"',.  32  Am.  Rep. 
UK?;    King  v.  Merriman.  .38  Minn.  47,  n2.  35  N,  W,  570. 

57  Evans  v.  Roberts.  5  Barn.  &  C.  S.3G;  .Tones  v.  Flint,  10  Adol.  & 
E.  7.^3;  Warwiclc  v.  Bruce,  2  Maule  &  S.  2Cr);  Dunne  v,  Ferguson, 
Hayes,  540;  Backenstoss  v.  Stabler.  .33  Fa.  251.  2.55.  75  Am.  Dec. 
502:  Marshall  v.  Fergusou.  23  Cal.  CCr.  Davis  v.  Mcl-arlane.  .37  Cal. 
634,  00  Am.  Dec.  340;  Vulicevich  v.  Skinner,  77  Cal.  2.30,  10  Pac. 
424;  (Jraff  v.  Fitch.  .58  111.  373.  11  Am.  Rep.  .85;  Swafford  v.  Spratt. 
0.",  Mo.  App.  G31.  07  S.  W^  701;  Wimp  v.  Early.  104  Mo.  App.  .85. 
7<^  S.  W.  343. 

!>8  Whipple  V.  Foot.  2  Johns.  (N.  Y.)  418.  3  Am.  Dec.  442;  Xew- 
corab  v.  Ramer,  2  Johns.  (N.  Y.)  421,  note  a;  Brittaln  v.  McKay, 
23  N.  C.  205,  35  Am.  Dec.  738;  Penhallnw  v.  Dwiglit,  7  M.ass.  34.  5 
Am.  Dec.  21;  W'estlirook  v.  Eager,  10  N.  J.  Law,  81;  Brlcker  v. 
riughcR,  4  Ind.  14(5;   Bull  v.  Griswold,  10  111.  G31. 


78  FORMATION   OF  THE   CONTRACT.  (Ch.  2 

section,^®  but  probably  they  are  such.®*  Whether  fructus  in- 
dustriales  include  a  crop  which  is  neither  annual  nor  perma- 
nent, but  which  affords  a  crop  either  the  second  or  third  year, 
or  a  succession  of  crops  for  several  years,  is  a  question  on 
which  there  is  little  authority;  but  it  would  seem  that  the 
crop  of  the  first  year  would  be  fructus  industriales,  and  that  the 
crops  of  subsequent  years  would  be  fructus  naturales,  unless^ 
like  hops,  they  require  cultivation  for  each  successive  crop, 
in  which  case  they  would  be  fructus  industriales  till  exhaust- 
ed.«i 

Fixtures. 

Where  chattels  are  attached  to  the  freehold,  as  a  rule,  they 
become  a  part  of  the  land,  and  are  treated  as  such.  Accord- 
ingly buildings  upon  the  land  pass  with  a  conve3'ance  of  it,  and 
an  oral  reservation  of  title  to  the  building  is  inoperative.*'^ 
And  a  -contract  to  sell  building  material  in  a  house  to  be  re- 
moved by  the  buyer  is  a  contract  for  the  sale  of  an  interest 


68  For  dicta  in  the  affirmatiye:  Evans  v.  Roberts,  5  Barn.  &  C. 
836,  per  Bayley,  J.,  and  Littledale,  J. ;  Marshall  v.  Green,  1  C.  P. 
Div.  35,  42,  per  Brett,  J.;  Dunne  v.  Ferguson.  Hayes,  540,  per  Joy, 
C.  B.;  Marshall  v.  Ferguson,  23  Cal.  66,  per  Crocker,  J.;  Sherry  v. 
Pieken,  10  Ind.  375,  per  Perkins.  J.  See,  also,  Pioss  v.  AVelch,  11 
Gray  (Mass.)  235.  Lord  Blackburn  says  that  the  proposition  Is 
"exceedingly  questionable."  Blackb.  Sales  (2d  Ed.)  p.  13;  Benj. 
Sales,  §  127;    Langd.  Gas.  Sales,  1031. 

CO  Under  Sales  Act,  §  76  (1),  emblements  are  goods,  thus  settling 
the  doubt  on  this  point. 

61  Benj.  Sales,  §§  128,  129,  citing  Graves  v.  Weld,  5  Barn.  &  Adol. 
105.  "A  growing  crop  of  peaches  or  other  fruit,  requiring  periodical 
expense,  industry,  and  attention,  *  *  *  may  be  well  classed  as 
fructus  industriales."  Burner  v.  Piercy,  40  Md.  212,  223,  17  Am. 
Rep.  591,  per  Stewart,  J. 

By  Sales  Act,  §  76  (1),  following  the  English  Sale  of  Goods  Act, 
"emblements"  and  "industrial  growing  crops"  are  declared  to  be 
goods.  The  latter  term  "would  seem  to  include  the  first  crop  at  any 
rate  of  vegetables  sown  or  planted,  although  not  maturing  within 
12  months — such  as  clover  and  teasels — and  of  artificial  grass." 
Bonj.  Sales  (5th  Ed.)  189.  It  is  said  to  be  a  Scotch  term.  Chalmers, 
Sale  of  Goods  Act  (6th  Ed.)  124;  Benj.  Sales  (5th  Eng.  Ed.)  173. 

G 2  Noble  V.  Bosworth,  19  Pick.  (Mass.)  314;  Leonard  v.  Clough. 
133  N.  Y.  292,  31  N.  E.  93,  16  L.  R.  A.  305. 


§§  21-22)       WHAT  AUE  GOODS,  WAUKS,  AND  M  KUCIIANDISE.       1'J 

in  land;  "^  but  it  seems  that  a  contract  to  sell  such  materials, 
when  they  are  to  be  removed  from  the  land  before  the  sale,  is 
a  contract  to  sell  goods."* 

Where,  however,  chattels  have  been  affixed  to  the  freehold 
by  a  tenant  and  are  subject  to  his  right  to  remove  them  during 
the  term,  it  has  been  held  in  England  that  a  sale  of  them  by 
the  tenant  to  the  landlord  is  not  a  sale  of  an  interest  in  land 
within  the  fourth  section,  or  of  goods  within  the  seventeenth ; 
the  real  nature  of  the  transaction  being  an  abandonment  of  his 
right  to  sever  them.*"*  Whether  a  sale  of  fixtures  by  a  tenant 
under  such  circumstances  to  a  stranger  would  be  a  mere  trans- 
fer of  the  tenant's  right  to  sever  them,  or  would  be  deemed, 
like  a  sale  of  emblements,  to  be  a  sale  of  chattels,  and,  if  the 
latter  whether  it  would  be  a  sale  of  goods,  seems  to  be  an  open 
question. °®  In  this  country  a  sale  of  removable  fixtures  by  a 
tenant  has  been  held  not  to  be  within  the  fourth  section, °'  and 
it  seems  that  a  contract  by  the  tenant  to  sell  such  fixtures,  to  be 
removed  before  the  sale,  would  be  a  contract  to  sell  goods  with- 
in the  seventeenth  section.^** 

«3  Lnvery  v.  Pursell,  39  Cb.  Div.  TiOS.  And  see  Brown  v.  llnliuid. 
92  Tex.  54,  45  S.  W.  705. 

6*  Bostwick  V.  Leach.  3  Day  (Conn.)  4T(;;  Long  v.  White.  42  Ohio 
St.  50;  Michael  v.  Cnrtis.  CO  Conn.  3(i:'..  '22  At).  010;  Scales  v.  Wiley. 
68  Vt  30,  33  Atl.  771;  ante,  p.  74.  But  see  Meyers  v.  Scbenii).  G7 
111.  409. 

In  Scales  v.  Wiley,  supra,  it  was  held  that  a  contract  Avhereby 
plaintiff  was  to  take  down  a  barn  on  her  premises,  and,  after  the 
lumber  had  been  drawn  to  defendant's  premises,  re-erect  It  there. 
Avas  not  a  contract  for  the  sale  of  an  interest  in  land;  but  that  it 
was  not  a  contract  to  sell  goods,  but  to  make  improvements  on  real 
•  state. 

05  Hallen  v.  Bunder.  1  Cronip..  M.  &  B.  2G('>;  Lee  v.  Gaskell.  1 
Q.  B.  Div.  700.  45  Law  J.  Q.  B.  540.  And  see  South  Baltimore  Co. 
V.  Muhlbach,  69  Md.  395.  16  Atl.  117,  1  L.  R.  A.  507. 

68  Benj.  Sales  (5  Ene.  Ed.)  1S7. 

8T  Heysham  v.  Dettre.  89  Pa.  506;  Powell  \.  McAsban,  28  Mo.  70. 
"In  the  case  of  fixtures  Avhich  are. not  incorporated  with,  but  mere- 
ly annexed  to,  the  freehold,  the  rule  is  well  settled  tb:it  the  statute 
does  not  apply."     Strong  v.  Doyle,  110  Mass.  92,  per  Colt,  J. 

«8  Ante,  p.  74. 


80  FORMATION   OF  THE   CONTRACT.  (Ch.  2 

Minerals — Ice. 

Minerals,  while  in  the  earth,  form  part  of  the  realty;  but, 
when  mined  and  severed  therefrom,  they  become  personalty.®* 
Hence  a  contract  for  the  sale  of  minerals  which  have  been  sev- 
ered is  a  contract  for  the  sale  of  chattels,  and  not  of  an  interest 
in  land.'^"  By  virtue  of  his  ownership  of  the  soil,  ice  which 
forms  upon  water  overlying  the  land  belongs  to  the  owner  of 
the  land.^^  It  has  been  held,  however,  that  ice  should  be  dealt 
with  in  law  according  to  its  uses  in  fact,  and  that  any  sale  of  ice 
ready  formed,  as  a  distinct  commodity,  should  be  held  a  sale 
of  personalty,  whether  in  the  water  or  out  of  the  water.'^^ 

WHAT  IS  A  CONTRACT  FOR  THE  PRICE   OR   VALUE  OF 

£10  ($50). 

23.    Tlie  statute  of  frauds  includes: 

(a)  An  entire  contract  for  the  sale  of  goods  and  for  otlier 

objects   not   writliin    the    statute,    %vliere    the   value    of 
the  goods  exceeds   the  statutory  amount. 

(b)  An  entire  contract  for  the  sale  of  di£Ee*rent  goods,    the 

joint  value  w^hereof  exceeds  the  statutory  amount. 

(c)  A  contract  for  the  sale  of  goods  of  unascertained  value 

at  the  date  of  the  contract,  the  value  TO^hereof  is  aft- 
er-wards ascertained  to  exceed  the  statutory  amount. ^3 

The  rule  that  an  entire  contract  for  the  sale  of  goods,  and  for 
other  matters  not  within  the  statute,  is  invalid,  if  the  value  of 
the  goods  exceeds  the  statutory  amount,  was  established  by 
Harman  v.  Reeve,''*  in  which  the  plaintiff  agreed  to  sell  to  the 

6  9  Green  v.  Iron  Co.,  62  Pa.  97;  Kelley  v.  Oil  Co.,  57  Ohio  St.  317, 
49  N.  E.  399,  39  L.  R.  A.  765,  63  Am.  St.  Rep.  721. 

70  A  contract  between  A.  and  B.  to  work  a  stone  quarry  and  divide 
the  profits,  if  A.  can  purchase  the  land  and  secure  a  deed  to  himself, 
is  not  for  an  interest  in  land.  Treat  v.  Hiles,  68  Wis.  344,  32  N.  W. 
517,  60  Am.  Rep.  858. 

71  Stevens  v.  Kelley,  78  Me.  445,  6  Atl.  868,  57  Am.  Rep.  813;  Peo- 
ple's Ice  Co.  V.  The  Excelsior,  44  Mich.  229,  6  N.  W.  636,  38  Am. 
Rep.  246;   Hoag  v.  Place,  93  Mich.  4.50,  53  N.  W.  617,  18  L.  R.  A.  39. 

72  Higgins  v.  Kusterer,  41  Mich.  318,  2  N.  W.  13,  32  Am.  Rep.  160. 

7  3  See  Kerr,  Dig.  Sales,  §  7. 

7  4  IS  C.  B,  587,  25  Law  .T.  C.  P.  257.  See,  also,  Astey  v.  Emery, 
4  Maule  &  S.  262;    Cobbold  v.  Caston,  1  Bing.  399,  8  Moore,  456. 


§  23)       CONTRACT  FOR  TlIK  I'KK  K  OR  VALUE  OF  £lU  <$r)0).       81 

defendant  a  mare  and  foal,  which  were  ahove  the  value  of  ilO, 
and  also  to  agist  them  and  another  mare  and  foal  for  £30. 
The  statute  was  held  to  apply,  but  the  court  said  that  the  plain- 
tiff mi^ht  recover  the  value  of  the  agistment.  In  the  ^Iassa- 
chusetts  case  of  Irvine  v.  Stone, ^°  however,  in  which  a  contract 
for  the  purchase  of  a  cargo  of  coal  at  Philadelphia  at  an  agreed 
price  per  ton,  and  for  the  payment  of  the  freight,  was  held  with- 
in the  statute,  the  contract  was  held  also  to  be  unenforceable  as 
to  the  freight. 

The  leading  case  upon  the  rule  that  an  entire  contract  for 
the  sale  of  various  articles,  neither  of  which  is  of  the  statutory 
value,  but  whose  value  in  gross  exceeds  it,  is  within  the  statute, 
is  Baldey  v.  Parker. '''  In  this  case  the  defendant  bought  at  the 
plaintiff's  shop  a  number  of  articles,  each  at  a  separate  price 
less  than  ilO,  the  whole  amount  being  £70,  and  the  case  was 
decided  upon  the  ground  that  the  transaction  constituted  one 
entire  contract.  The  cases  in  this  country  are  in  harmony  with 
Pialdey  v.  Parker,'^ ^  and  they  even  extend  the  rule  to  an  auction, 
where  the  articles  are  struck  off  separately  at  distinct  prices,^* 
though  in  England  in  such  a  case  a  distinct  contract  arises  for 
each  lot.^" 

The  rule  that  the  statute  applies,  although  it  be  not  ascer- 
tained till  after  the  date  of  the  contract  that  the  value  exceeds 
the  statutory  amount,  was  involved  in  Watts  v.  Friend,""  where 
the  sale  was  of  a  future  crop  of  turnip  seed  at  a  guinea  a  bushel, 
and  the  value  of  the  crop  when  produced  exceeded  £10.    The 

75  6  Gush.  508.     See,  also,  McMullen  v.  Riley,  6  Gray  (Mass.)  500. 

76  2  r.arn.  &  G.  37. 

77  Giliuau  V.  Hill,  36  N.  H.  318;  Gault  v.  Brown,  48  N.  H.  183.  2 
Am.  Rep.  210;   Allard  v.  Greasert.  61  N.  Y.  1. 

78  Mills  V.  Hunt.  17  Wend.  (X.  Y.)  333;  Id.,  20  Wend.  (N.  Y.)  431; 
Coffnian  v.  Hampton,  2  Watts  &  S.  (Pa.)  377,  37  .Vm.  Dec.  oil; 
Tompkins  v.  Haas,  2  Pa.  74;  Kerr  v.  Sbrader,  1  Wkly.  Notes  Cas. 
(Pa.)  33;  Jenness  v.  Wendell.  51  N.  H.  03,  12  Am.  Rep.  48.  But 
separate  sales  of  real  estate  are  distinct  contracts.  Van  Eps  v. 
Schenectady,  12  Johns.  (N.  Y.)  430,  7  Am.  Dec.  3.30;  Robinson  v. 
Green,  3  Mete.  (Mass.)  159;    Wells  v.  Day,  124  Mass.  38. 

7  0  Emmerson  v.  Heelis,  2  Taunt,  38.  See,  also,  llngg  v.  Miiiett, 
11  East.  218.  per  Le  Blanc.  .T.;  R(x)ts  v.  I>ornier,  4  Barn-  &.  Adol.  77; 
Couston  V.  Ghapman.  L.  R.  2  H.  L.  Sc.  2.jO. 

«o  10  Barn.  &  G.  440. 

TrFF.SAT,Es(2n  En.)— 6 


82  FORMATION   OF  THE   CONTRACT.  (Ch.  2 

point  was  not  argued  or  mentioned  by  the  court,  but  the  de- 
cision has  been  followed  in  the  United  States. ^^ 


ACCEPTANCE    AND    RECEIPT. 

24.  In  order  to  satisfy  the  exception,  in  case  "the  buyer  shall 

accept  part  of  the  goods  so  sold,  and  actually  receive 
the  same,"  there  must  be  both  acceptance  and  actual 
receipt. 

25.  Acceptance    may    precede,    be    contemporaneous    Avith,    or 

subsequent  to,  receipt,  and  both  may  be  subsequent 
to  the  contract  of  sale. 

26.  A  sample  constitutes  a  "part  of  the  goods,"  if  it  be  con- 

sidered by  the  parties  as  part  of  the  bulk  sold. 

Having  considered  the  meaning  of  the  words,  "no  contract 
for  the  sale  of  goods,  wares,  or  merchandise  for  the  price  of 
ilO  or  upwards,"  it  remains  to  consider  under  what  circum- 
stances such  contracts  "shall  be  allowed  to  be  good."  The 
section  provides  that  they  shall  not  be  allowed  to  be  good,  "ex- 
cept (1)  the  buyer  shall  accept  part  of  the  goods  so  sold,  and 
actually  receive  the  same ;  (2)  or  give  something  in  earnest  to 
bind  the  bargain,  or  in  part  payment ;  (3)  or  that  some  note  or 
memorandum  in  writing  of  the  said  bargain  be  made  and  sign- 
ed by  the  parties  to  be  charged  by  such  contract,  or  their  agents 
thereunto  lawfully  authorized."  ^^ 

Acceptance  and  Receipt. 

Referring  to  the  first  exception,  Lord  Blackburn  says:  *'  "If 
we  seek  for  the  meaning  of  the  enactment,  judging  merely  from 
its  words,  and  without  reference  to  decisions,  it  seems  that  this 
provision  is  not  complied  with,  unless  the  two  things  concur : 
The  buyer  must  accept,  and  he  must  actually  receive  part  of 
the  goods,  and  the  contract  will  not  be  good  unless  he  does 
both ;  and  this  is  to  be  borne  in  mind,  for,  as  there  may  be  an 
actual  receipt  without  an  acceptance,  so  there  may  be  an  accep- 

81  Carpenter  v.  Galloway,  73  Ind.  418;  Bowman  v.  Conn,  8  Ind. 
58;   Brown  v.  Sanborn,  21  Minn.  402. 

82  Benj.  Sales,  §  138  et  seq. 
8  3  Blackb.  Sales,  16. 


\ 


§§  24-26)  ACCEPTANCE   AND    RECEIPT.  83 

taiicc  without  any  receipt.  In  tlie  absence  of  authority,  and 
judging  merely  from  the  ordinary  meaning  of  language,  one 
would  say  that  an  acceptance  of  part  of  tlie  goods  is  an  assent 
by  the  buyer,  meant  to  be  final,  that  this  part  of  the  goo«ls  is 
to  be  taken  by  him  as  his  property  under  the  contract,  and  as 
so  far  satisfying  the  contract.  So  long  as  the  buyer  can, 
without  self-contradiction,  declare  that  the  goods  are  not  to  be 
taken  in  fulfillment  of  the  contract,  he  has  not  accepted  them. 
And  it  is  immaterial  whetlier  his  refusal  to  take  the  goods  be 
reasonable  or  not.  If  he  refuses  the  goods,  assigning  grounds 
false  or  frivolous,  or  assigning  no  reasons  at  all,  it  is  still  clear 
that  he  does  not  accept  the  goods,  and  the  question  is  not 
whether  he  ought  to  accept,  but  whether  he  has  accepted,  them. 
The  question  of  acceptance  or  not  is  a  question  as  to  what  was 
the  intention  of  the  buyer,  as  signified  by  his  outward  acts. 
The  receipt  of  part  of  the  goods  is  the  taking  possession  of 
them.  When  the  seller  gives  to  the  buyer  the  actual  control 
of  the  goods,  and  the  buyer  accepts  such  control,  he  has  actually 
received  them.  Such  a  receipt  is  often  evidence  of  acceptance, 
but  it  is  not  the  same  thing;  indeed,  the  receipt  by  the  buyer 
may  be,  and  often  is,  for  the  express  purpose  of  seeing  whether 
he  will  accept  or  not.  If  goods  of  a  particular  description  are 
ordered  to  be  sent  by  a  carrier,  the  buyer  must  in  every  case 
receive  the  package  to  see  whether  it  answers  his  order  or  not. 
It  may  even  be  reasonable  to  try  part  of  the  goods  by  using 
them ;  but,  though  this  is  a  very  actual  receipt,  it  is  no  accept- 
ance, so  long  as  the  buyer  can  consistently  object  to  the  goods 
as  not  answering  his  order." 

It  is  to  be  observed  that  the  two  questions  of  acceptance  and 
receipt  are  frequently  confused  in  the  cases,  and  it  has  some- 
times been  questioned  whether  any  distinction  existed  between 
them.**  It  is  clearly  established,  however,  that  they  are  dis- 
tinct, and   that  both   acceptance  and   receipt  are  essential." 

8*  Castle  V.  Sworder,  6  Hurl.  &  N.  832,  30  Law  J.  Exch.  310.  per 
Crompton,  J.,  and  Cockburn,  C.  J. 

85  Smith  V.  Hudson,  G  Best  &  S.  431,  34  Law  J.  Q.  B.  145;  Cusack 
V.  Robinson,  1  Best  &  S.  299,  ."^O  Law  J.  Q.  B.  201  ;  Bill  v.  Bamcnt. 
9  Meos,  &  W.  36;  Baldoy  v.  Tarker.  2  Barn.  &  C.  37:  Saunders  v. 
Topp,  4  Fhcch.  390;  Cniilkins  v.  Hollni:in.  47  N.  Y.  449.  7  Am.  Hop. 
-lt)l;   Cooke  v.  Millard,  G5  N.  Y.  3.j2,  .^(m,  22  Am.  Itf-p.  G19:    Maxwell 


84  FORMATION  OF  THE   CONTRACT.  (Ch.  2 

Acceptance  may  precede  receipt,^''  or  receipt  may  precede  ac- 
ceptance,^^ and  both  may  be  subsequent  to  the  contract  of 
sale.^^  Their  effect  is  to  prove  that  there  was  a  contract,  the 
terms  of  which  may  then  be  proved  by  parol.^^ 

Acceptance  and  Receipt  of  Part — Sample. 

As  the  statute  requires  an  acceptance  and  receipt  simply  of  a 
part,  it  is  immaterial  how  small  such  part  is.^'^  Thus  accept- 
ance and  receipt  of  a  sample  is  sufficient,  provided  it  be  con- 
sidered by  the  parties  as  part  of  the  bulk  sold.®^  It  is  not  suf- 
ficient if  the  sample  be  not  so  considered.^-     So,  also,  accept- 


V.  Brown,  39  Me.  98,  63  Am.  Dec.  605;  Powder  River  Live  Stoclc 
Co.  V.  Lamb,  38  Neb.  339,  56  N.  W.  1019. 

«6  pr.rt,  p.  85. 

•7  Post,  p.   87. 

8  8  Gault  V.  Brown,  48  N.  H.  183,  188,  2  Am.  Rep.  210;  McKnigbt 
V.  Dunlop,  5  N.  Y.  537,  55  Am.  Dec.  370;  Marsh  v.  Hyde,  3  Gray 
(Mass.)  331;  Bush  v.  Holmes,  53  Me.  417;  Field  v.  Runk,  22  N.  J. 
Law,  525,  530;  McCarthy  v.  Nash,  14  Minn.  127  (Gil.  95);  Rickey 
v.  Tenhroeck,  63  Mo.  563.  Acceptance  can  have  no  effect  after  the 
seller  has  disaffirmed.  Taylor  v.  Wakefield,  6  El.  &  Bl.  765.  See 
Washington  Ice  Co.  v.  Webster,  62  Me.  341,  361,  16  Am.  Rep.  462; 
Brand  v.  Focht,  *42  N.  Y.  409. 

8  9  Tomkinson  v.  Staight,  25  Law  J.  C.  P.  85,  17  O.  B.  697;  Gar- 
field V,  Paris,  96  U.  S.  557,  566,  24  L.  Ed.  821;  Coffin  v.  Bradbury, 
3  Idaho  (Hash.)  770,  35  Pac.  715,  95  Am.  St.  Rep.  37. 

90  Garfield  v.  Paris,  96  U.  S.  557,  24  L.  Ed.  821  (labels  deliverable 
imder  a  contract  for  liquors  as  part  of  the  goods  sold);  Damon  v. 
Osborn,  1  Pick.  (Mass.)  476,  11  Am.  Dec.  229;  Farmer  v.  Gray,  16 
Neb.  401,  20  N.  W.  276.  A  parol  contract  for  the  purchase  of  cor- 
porate stock  owned  in  different  portions  by  different  persons,  who 
individually  consent  to  the  sale,  which  is  conducted  by  one  of  them, 
is  the  separate  contract  of  each  owner,  so  that  a  delivery  of  the 
stock  of  one  does  not  prevent  the  operation,  as  to  the  contract  of 
another,  of  the  statute  of  frauds,  which  renders  void  parol  contracts 
for  the  sale  of  goods  above  a  certain  price,  vmless  there  is  an  ac- 
ceptance by  the  buyer,  in  whole  or  in  part.  Tompkins  v.  Sheehan, 
158  N.  Y.  617,  53  N.  E.  502. 

91  Hinde  v.  Whitehouse,  7  East,  558;  Talver  v.  West,  Holt,  178; 
Klinitz  V.  Surry,  5  Esp.  267;  Gardner  v.  Grout,  2  C.  B.  (N.  S.)  340; 
Brock  V.  Knower,  37  Hun  (N.  Y.)  609. 

9  2  Cooper  V.  Elston,  7  Term  R.  14;  Simonds  v.  Fisher,  cited  in 
Gardner  v.  Grout,  2  C.  B.  (N.  S.)  340;  Moore  v.  Love,  57  Miss.  765; 
Dierson  v.  Petersmeyer.  100  Iowa,  233,  SO  N.  W.  389.  See  Carver  v. 
Lane,  4  E.  D.  Smith  (N.  Y.)  168. 


§§  27-29)  ACCEPTANCE    AND    UECKlFf.  85 

ancc  and  receipt  of  a  part  is  suflicient,  though  the  rest  of  the 
goods  are  still  unmade,"^  or  though  the  contract  eml)races  dif- 
ferent kinds  of  goods,  only  one  of  which  is  accepted  and  re- 
ceived.** 

SAME— ACCEPTANCE. 

27.  Acceptance  is  on  assent  by  the  buyer   that   the  (^oods   are 

to  be  taken  by  him  nnder  and  in  performance  of  the 
contract  of  sale.  'Whether  the  buyer  has  accepted  is 
a  question  of  his  intention,  as  evidenced  by  his  words 
and  acts.  In  England  (but  not  in  the  United  States) 
any  dealing  ivith  the  goods  ivhich  recognizes  a  pre- 
existing contract  of  sale   constitutes  an  acceptance. 

28.  If  the  contract  be  for  the   sale  of  specific   goods,   the  ac- 

ceptance takes  place  ^vhen  the  contract  is  entered  in- 
to, and  is  proved  by  the  same  evidence  which  proves 
the    contract. 

29.  CONSTRUCTIVE  ACCEPTANCE.      If  the  goods  have  been 

received  by  the  buyer,  any  dealing  with  them  by  him 
as  OTvner  is   evidence   of  acceptance. 

Lord  Blackburn  adds  at  the  close  of  the  passage  quoted 
on  a  preceding  page  that  "on  the  whole  the  cases  are  pretty  con- 
sistent with  these  suggestions  and  with  each  other,  as  to  what 
forms  an  acceptance  within  the  statute,  though  not  as  to  the 
strength  of  the  proof  required  to  establish  it."  "^  The  Amer- 
ican cases  also  are  pretty  consistent  with  this  statement  of  the 
law,  but  in  England,  as  will  be  seen,  an  artificial  construction 
has  since  the  passage  was  written  been  put  upon  "acceptance." 
which  is  quite  inconsistent  with  the  views  there  expressed. 
The  nature  of  an  acceptance  can  best  be  understood  by  a  con- 
sideration of  the  circumstances  under  which  it  is  held  to  take 
place. 

If  the  contract  of  sale  is  for  specified  goods,  an  acceptance 
ordinarily  takes  place   when   the   contract  is  entered   into."* 

8  8  Scott  V.  Railway  Co.,  12  Mees.  &  W.  33. 

»*  Elliott  V.  Tliomas,  3  Met-s.  &  W.  170. 

'BBlackb.  Sales,  17. 

««Cusack  V.  Robinson,  1  Best  &  S.  200,  30  T.nw  J.  Q.  B.  201; 
Bop  Lead  Min.  Co.  v.  Monta.mio,  10  C.  B.  (N.  S.)  4.S1,  4b.it:  CrDfts 
V.  O'Donnoll,  44  N.  Y.  GGl,  4  Am.  Rep.  721;  United  States  Reflector 


86  FORMATION   OF  THE   CONTRACT.  (Ch.  2 

Thus  in  Cusack  v.  Robinson,® '^  where  the  buyer  was  shown  a 
lot  of  156  firkins  of  butter  and  agreed  to  buy  the  lot,  and  the 
goods  were  forwarded  to  him,  it  was  held  that  there  was  suf- 
ficient evidence  to  justify  the  jury  in  finding  an  acceptance. 
Blackburn,  J.,  said:  "There  was  sufficient  evidence  that  the 
defendant  had  at  Liverpool  selected  these  specific  156  firkins  of 
butter  as  those  which  he  then  agreed  to  take  as  his  property  as 
the  goods  sold,  and  that  he  directed  those  specific  goods  to  be 
sent  to  London.  This  was  certainly  evidence  of  an  acceptance." 
In  such  cases  the  acceptance  of  course  precedes  the  receipt. 
Yet  other  cases  hold  or  declare  that,  although  the  contract  is 
one  of  sale  of  specific  goods,  an  acceptance  is  not  established 
merely  by  the  words  which  indicate  the  buyer's  assent  to  the 
sale,  but  that  the  acceptance,  as  well  as  the  receipt,  must  be 
established  by  acts  of  the  buyer  over  and  above  the  words  of  the 
sale.'^  If  the  goods  are  ready  for  delivery,  an  acceptance  will 
readily  be  implied,  for  example,  from  marking  the  goods  with 
the  name  of  the  buyer  by  his  consent,®^  although  such  marking 
would  not  constitute  an  actual  receipt;    but,  if  the  goods  are 

Co.  v.  Rnshton,  7  Daly  (N.  Y.)  410;  Victor  v.  Stroock  (City  Ct.  N.  Y.) 
3  N.  Y.  Supp.  801;  Id.,  5  Daly  (N.  Y.)  329,  5  N.  Y.  Supp.  650;  Simp- 
son V.  Krumdick,  28  Miim.  352,  355,  10  N.  W.  18.  See,  also,  Bx 
parte  Saflford,  2  Low  (U.  S.)  563,  565,  Fed.  Cas.  No.  12,212;  Knight 
V.  Mann,  118  Mass.  143,  145;  Hewes  v.  Jordan,  39  Md.  472,  484,  17 
Am.  Rep,  578;  Lacgd.  Cas.  Sales,  1021.  "There  may  be  a  receipt  with- 
out any  acceptance,  and  an  acceptance  without  any  receipt.  *  *  * 
An  instance  of  acceptance  without  receipt  is  where  the  sale  is  of  a 
specific  lot  of  goods,  where  the  bargain  itself  identifies  the  goods 
as  so  sold,  and  as  of  the  quality  which  the  buyer  agrees  to  "buyi. 
In  such  case  the  buyer  accepts  when  the  bargain  is  made,  though  he 
may  not  receive  the  goods  at  that  time."  Simpson  v.  Krumdick, 
per  Gllfillan,  C.  J. 

»7  1  Best  &  S.  299,  30  Law  J.  Q.  B.  261. 

88  See  Shindler  t.  Houston,  1  N.  Y.  261.  49  Am.  Dec.  316;  Gorman 
V.  Brossard,  120  Mich.  611,  79  Ni  W.  903;  post,  p.  88  and  cases 
cited  in  note  109.  Cf.  Devine  v.  Warner,  75  Conn.  375,  53  Atl.  782, 
96  Am.  St.  Rep.  211;   Id..  76  Conn.  229,  56  Atl.  562. 

The  present  English  rule  requires  an  act  recognizing  a  pre-exist- 
ing contract.     Post,  p.  89. 

9  9  Bill  V.  Bament,  9  Mees.  &  W.  36;  Hodgson  v.  Le  Bret,  1  Camp. 
2.33;  Proctor  v.  Jones,  2  Car.  &  P.  532,  per  Best,  C.  J.;  Saunders  v. 
Topp,  4  Exch.  .390,  per  Alderson,  B.;  Benj.  Sales,  §  166,  note  y; 
Rappleye  v.  Adee,  1  Thomp.  &  C.  (N.  Y.)  127. 


§§  27-29)  ACCEITANCE    AM)    KIK  KllT.  87 

not  ready  for  delivery,  an  acceptance  will  not  readily  be  im- 
plied.*"" 

If  the  contract  of  sale  be  for  goods  which  are  not  specific 
when  the  contract  is  entered  into,  there  can  be  no  acceptance 
till  the  seller  has  indicated  to  the  buyer  what  goods  he  proposes 
to  deliver  in  performance  of  the  contract,'*"  and  it  seems  that 
the  buyer  is  then  entitled  to  a  reasonable  time  to  examine  the 
goods  before  deciding  whether  to  accept  them,*°^  though  he 
may  doubtless  waive  his  right  of  examination.'"'  After  the 
goods  have  been  received  by  the  buyer,  his  acceptance  may  be 
proved  by  any  dealing  with  the  goods  on  his  part  as  owner,'*** 

100  Maborley  v.  Sheppard,  10  Blng.  99;  Dauphiny  v.  Creamery 
Co.,  123  Cal.  548,  50  Pac.  451. 

101  Langd.  Cas.  Sales,  1021. 

loi  Hunt  V.  Hecbt,  8  Exch.  814;  Nicholson  v.  Bower,  1  El.  &  El. 
172;  Smith  v.  nudson.  G  Best  &  S.  431,  34  Law  J.  Q.  B.  ]4r>.  per 
Cockburn,  C.  J.;  Langd.  Cas.  Sales,  1021.  In  Morton  v.  Tlhhett, 
post,  I/ord  Campbell  says:  "The  acceptance  Is  to  be  something 
which  is  to  precede,  or  at  any  rate  to  be  contemporaneous  with,  the 
actual  receipt  of  the  goods,  and  is  not  to  be  a  subseciuent  act  after 
the  goods  have  been  actually  received,  weighed,  measure«l,  or  exam- 
ined." This  view  may  be  required  by  the  artitlcial  construction  put 
on  "acceptance"  by  Ix)rd  Campbell  and  the  latest  English  decisions. 
But,  where  the  term  is  construed  in  Its  natural  sense,  the  right  to 
examine  before  acceptance  or  rejection  would  seem  to  exist  of  neces- 
sity.   See  Kent  v.  Iluskinson,  3  Bos.  &  V.  233. 

103  "It  [acceptance]  means  some  act  done  after  the  vendee  has 
exercised,  or  had  the  means  of  exercising,  his  right  of  rejection." 
Hunt  v.  Ilecht,  8  Exch.  814.  22  Law  J.  Exch.  293,  per  Martin.  B. 
"According  to  Lord  Campbell  [Morton  v.  Tibbett,  cited  post],  there 
may  be  an  acceptance  and  receipt  of  goods  by  a  purchaser  within 
the  statute  of  frauds,  although  he  has  had  no  opportunity  of  ex- 
amining them,  and  although  he  has  done  nothing  to  preclude  him- 
self from  objecting  that  they  do  not  correspond  with  the  contract. 
I  agree  with  that.  But  in  such  case  the  party  must  have  done 
something  to  waive  his  right  to  reject  the  goods."  Per  Bramwell, 
B.,  in  Coombs  v.  Railway  Co.,  3  Hurl.  &  N.  510,  27  I^w  J.  Exch. 
401.  Of  course,  the  buyer  may  waive  the  right  to  examine.  Currle 
V.  Anderson,  2  El.  &  El.  592. 

104  Beaumont  v.  Brengeri.  5  C.  B.  301;  Parker  v.  Wallls,  5  EI.  & 
Bl.  21;  Garfleld  v.  Paris.  90  U.  S.  557,  503,  24  L.  Ed.  S21;  Vincent 
v.  Germond,  11  .Johns.  (N.  Y.)  283;  Gray  v.  Davis.  10  N.  Y.  2S.-. ; 
Jones  V.  Reynolds,  120  N,  Y.  213,  24  N.  E.  279;  Townsend  v.  Har- 
graves,  118  Mass.  325,  332;  Ex  parte  SalTord,  2  Low.  (U.  S.)  50:1, 
Fed.  Cas.  No.  12,212;    Barkalow  v.  Pfeiffer,  38  Ind.  214;    Bacon  v. 


88  FORMATION   OF  THE   CONTRACT.  (Ch.  2 

for  example  by  a  resale/"^  and  even  by  his  retaining  them  for 
such  time  as  to  lead  to  the  presumption  that  he  intended  to 
keep  them  as  owner.^°^  And  a  dealing  with  the  goods,  such 
as  to  constitute  an  acceptance,  may  take  place  as  effectively 
with  the  bill  of  lading,  which  represents  the  goods,  as  with  the 
goods  themselves.^°'^  An  acceptance  implied  from  the  conduct 
of  the  buyer  is  called  a  constructive  acceptance.  Whether  the 
acts  or  omissions  of  the  buyer  amount  to  a  constructive  accept- 
ance is  a  cjuestion  of  fact  for  the  jury,  though  the  question  is, 
of  course,  to  be  determined  by  the  court,  if  the  evidence  is  cap- 
able of  only  one  construction. ^°^  It  is  sometimes  said  that  an 
acceptance  must  be  established  by  some  act  of  the  buyer,  and 
that  mere  words  are  not  enough,  but  the  cases  in  which  such 
statements  occur  generally  involve  simply  the  proposition  that 
mere  words  are  not  enough  to  constitute  acceptance  and  re- 
ceipt,^"® and  there  is  on  principle  no  reason  why  the  acceptance 


Eccles,  43  Wis.  227,  238;  Sullivan  v.  Sullivan,  70  Mich.  583,  38  N. 
W.  472;  Wyler  v.  Rothschild,  53  Neb.  566,  74  N.  W.  41;  Leonard 
V.  Medford,  85  Md.  666,  37  Atl.  365,  37  L.  R.  A.  449. 

105  Chaplin  v.  Itogers,  1  East,  195;  Hill  v.  McDonald,  17  Wis. 
100;   Phillips  v.  Mills,  55  Ga.  633;   Marshall  v.  Ferguson,  23  Cal.  66. 

106  Bushel  V.  Wheeler,  15  Q.  B.  442;  Coleman  v.  Gibson,  1  Moody 
&  R.  168;  Currie  v.  Anderson,  2  El.  &  El.  592;  B'arina  v.  Home,  16 
Mees.  &  W.  119;  Bon-owscale  v.  Bosworth,  99  Mass.  379;  Spencer 
v.  Hale,  30  Vt.  314,  73  Am.  Dec.  309;  Downs  v.  Marsh,  29  Conn.  409; 
Gaff  V.  Homeyer,  59  Mo.  345;  Hobbs  v.  Whip  Co.,  158  Mass.  194, 
33  N.  E.  495. 

107  Currie  v.  Anderson,  2  Bl.  &  El.  592,  29  Law  J.  Q.  B.  87;  Mere- 
dith V.  Meigh,  2  El.  &  Bl.  364,  22  Law  .J.  Q.  B.  401.  See  Quintard 
V.  Bacon,  99  Mass.  185;  Rodgers  v.  Phillips,  40  N.  Y.  519. 

108  Edan  v.  Dudfield,  1  Q.  B.  302,  per  Denman,  C.  J.;  Bushel  v. 
Wheeler,  15  Q.  B.  442,  per  Coleman  and  Williams,  JJ.;  Garfield  v. 
Paris.  96  U.  S.  557,  563,  24  L.  Ed.  821;  Hiuchman  v.  Lincoln.  124- 
U.  S.  38,  8  Sup.  Ct.  369,  31  L.  Ed.  337;  Stone  v.  Browning,  68  N.  Y. 
598;  Shepherd  v.  Pressey,  32  N.  H.  49,  57;  Corbett  v.  Wolford,  84 
Md.  426,  35  Atl.  1088. 

109  Shindler  v.  Houston,  1  N.  Y.  261,  49  Am.  Dec.  316;  Bailey  v. 
Ogden,  3  Johns.  (N.  Y.)  421,  3  Am.  Dec.  509;  Kellogg  v.  Witherhead, 
6Thomp.  &  C.  (N.  Y.)  525;  Dole  v.  Stimpson,  21  Pick.  (Mass.)  384; 
Edwards  v.  Railway  Co.,  54  Me.  105;  Kirby  v.  Johnson,  22  Mo. 
364;  Northrup  v.  Cook,  39  Mo.  208;  Clark  v.  Labreche,  63  N.  H. 
397;    Gorman  v.  Brossard,  120  Mich.  Oil,  79  N.  W.  903. 


§§  27-29)  ACCEITANCK    AM)    lvi:(  KII'T.  89 

may  not  be  evidenced  by  the  buyer's  declarations.""  The  rc- 
ceii)t  of  goods  by  a  carrier  or  wliarfinj^i-r  appointed  by  the  buy- 
er does  not  constitute  an  acceptance.  These  agents  liave  au- 
thority to  receive,  but  not  to  accept."* 

IVIicthcr  Acccptaucc  must  be  in  Performance  of  the  Contract — 

In  England. 

Beginning  with  the  case  of  Morton  v.  Tibbett,"-  a  different 
construction  began  in  England  to  be  placed  on  "acceptance," 
and  it  has  become  established  that  the  acceptance  need  not  be 
in  performance  of  the  contract,  but  that  any  dealing  with  the 
goods  which  recognizes  a  pre-existing  contract  of  sale  consti- 
tutes an  acceptance."^  In  Morton  v.  Tibbett,  the  defendant 
had  made  a  verbal  agreement  with  the  plaintiff  for  the  purchase 
of  50  quarters  of  wheat  according  to  sample,  each  quarter  to 
be  of  a  specified  weight,  and  the  wheat  was  received  on  the 
ilefendant's  lighter  for  conveyance  to  its  destination,  where 
it  duly  arrived,  but  in  the  meantime  the  defendant  resold  it 
on  the  same  understanding  as  to  weight.  The  wheat  on  arrival 
was  rejected  by  the  second  purchaser  for  short  weight,  and  was 
thereupon  rejected  by  the  defendant  on  the  same  ground.     It 

iioCaulkins  v.  Ilellman,  47  N.  Y.  449,  7  Am.  Rep.  4(;i;  Sliepln-nl 
V.  Pressey,  32  N.  H.  49,  58;  Schmidt  v.  Tbomas,  75  Wis.  529,  44  N. 
W.  771;  Galviu  v.  MacKenzie.  21  Or.  184,  27  Tac.  1039.  See  Stone 
V.  Browning,  GS  N.  Y.  598.  Acceptance  is  evidenced  by  mere  words, 
where  the  contract  is  for  specific  floods,  ante.  p.  85. 

111  Hanson  v.  Armitajxe,  5  Barn.  &  Aid.  5r>7;  Norman  v.  Phillips. 
14  Moes.  &  W.  27(!;  Hunt  v.  Hecht,  8  E.KCh.  814;  Meredith  v.  McIkIi, 
2  El.  &  Bl.  370,  22  Law  J.  Q.  B.  401.  overruling  Hart  v.  Sattley.  ?, 
Camp.  528;  Frostburg  Min.  Co.  v.  Glafis  Co..  9  Cush.  (Mas.s.)  115; 
Allard  v.  Greasert,  Gl  N.  Y.  1,  5;  Jones  v.  Bank,  29  Md.  287.  (V,  Am. 
Doc.  .j33;  Johnson  v.  Cuttle.  105  Mass.  447,  7  Am.  Hop.  545;  Keiwort 
V.  Meyer,  G2  Ind.  587,  30  Am.  Kep.  20G;  Billin  v.  Hcnkel,  9  Colo. 
394.  13  Pac.  420;  Fontaine  v.  Bush.  40  Minn.  141,  41  N.  \V.  4G5.  12 
Am.  St.  Rep.  722;  Hudson  Furniture  Co.  v.  Carpet  Co..  10  T'tah.  31. 
36  Pac.  132;  Waite  v.  McKelvy,  71  Minn.  1G7,  73  N.  W.  727;  Salo- 
mon v.  King,  03  N.  J.  Law,  39.  42  Atl.  745;  Gatiss  v.  Cyr.  i::4  .Mich. 
2.33,  9G  N.  W.  26.  Cf.  Leggott  &  Meyer  Tobacco  Co.  v.  Collier.  89 
Iowa.  144,  .56  N.  W.  417.  Contra:  Spencer  v.  Hale.  .30  Vt.  314,  73 
Am.  Dec.  309;    Strong  v.  Dodds,  47  Vt.  348.     Cf.  Agnew  v.  Dianas 

•  14  Vt.  147.  23  Atl.  6.34. 

112  15  Q.  B.  42S.  19  Law  J.  Q.  B.  382. 
lis  Kerr.  Dig.  Sales,  §  10. 


90  FORMATION   OF  THE  CONTRACT.  (Ch,  2 

was  held  that  the  defendant  had  accepted,  and  Lord  Campbell, 
after  observing  that  it  would  be  open  to  the  buyer,  after  ac- 
ceptance of  a  part,  "to  object  at  all  events  to  the  quantity  and 
quality  of  the  residue,"  announced :  "We  are  of  the  opinion 
that  *  *  *  there  may  be  an  acceptance  and  receipt  within 
the  meaning  of  the  act,  without  the  buyer  having  examined 
the  goods,  or  done  anything  to  preclude  him  from  contending 
that  they  do  not  correspond  with  the  contract.  The  acceptance 
to  let  in  parol  evidence  of  the  contract  appears  to  us  to  be  a 
different  acceptance  from  that  which  affords  exclusive  evidence 
of  the  contract  having  been  fulfilled.  We  are  therefore  of  the 
opinion  in  this  case  that,  although  the  defendant  had  done  noth- 
ing which  would  have  precluded  him  from  objecting  that  the 
wheat  delivered  was  not  according  to  the  contract,  there  was 
evidence  to  justify  the  jury  in  finding  that  the  defendant  ac- 
cepted and  received  it."  It  would  seem  that  the  resale  before 
examination  was  such  an  act  of  ownership  as  was  inconsistent 
with  the  continuance  of  the  right  of  property  in  the  seller,  that 
the  defendant  had  thereby  waived  his  right  to  reject  the  wheat, 
and  that  his  conduct  was  sufficient  evidence  of  an  accept- 
ance.^^* But  the  construction  announced  by  Lord  Campbell, 
that  acceptance  does  not  preclude  rejection,  has,  after  some  dis- 
sent,^^^  prevailed,  and  was  adopted  by  the  court  of  appeals  in 
the  recent  case  of  Page  v.  Morgan, ^^®  in  which  the  natural 
meaning  of  "accept"  is  entirely  abandoned.  There  the  buyer 
examined  the  goods  simply  to  see  if  they  agreed  with  the 

ii-i  Benj.  Sales,  §  150. 

115  Hunt  V.  Hecht,  8  Exch.  814,  22  Law  J.  Exch.  293;  Coombs  v. 
Bristol  &  E.  Ry.  Co.,  3  Hurl.  &  N.  510,  27  Law  J.  Exch.  401.  See, 
also.  Smith  v.  Hudson,  6  Best  &  S.  431,  34  Law  J.  Q.  B.  145;  Castle 
V.  Sworder,  6  Hurl.  &  N.  832,  30  Law  J.  Exch.  310,  per  Cockburn, 
C.  J. 

116  15  Q.  B.  Div.  228.  See.  also,  Cusack  v.  Robinson,  1  Best  & 
S.  299,  30  Law  J.  Q.  B.  261,  per  Blackburn,  J. ;  Currie  v.  Anderson, 
2  El.  &  El.  .592.  29  Law  J.  Q.  B.  87,  per  Crompton,  J.;  Kibble  v. 
Gough,  38  Law  T.  (N.  S.)  204;  Rickard  v.  Moore,  Id.  841.  But  where 
the  buyer  inspected  the  goods  at  the  carrier's  wharf  on  arrival,  and 
wrote  across  the  note  of  advice.  ''Refused,  not  according  to  represen- 
tation," and  10  days  later  notified  his  refusal  to  the  seller,  it  was 
held  no  acceptance  and  Page  v.  Morgan.  15  Q.  B.  Div.  228,  was  dis- 
tinguished.    Taylor  v.  Smith  [1893]  2  Q.  B.  65. 


§§  27-29)  ACCKPTANCE    AM)    KKCKIIT.  91 

sample,  and  rejected  them  as  not  equal  to  sample,  and  it  was 
held  that  this  constituted  an  acceptance.  Brett,  M.  R.,  in  giv- 
ing judgiiient,  said:  "All  that  is  necessary  is  an  acceptance 
which  could  not  have  been  made  except  upon  admission  that 
there  was  a  contract,  and  the  goods  were  sent  to  fulfill  that 
contract."  "I  rely  *  *  *  on  the  fact  that  the  defendant 
examined  the  goods  to  see  if  they  agreed  with  the  sample.  I 
do  not  see  how  it  is  possible  to  come  to  any  other  conclusion 
with  regard  to  that  fact  than  that  it  wa<;  a  dealincr  witli  the 
goods,  involving  an  admission  that  there  was  a  contract," 

Sajne — In  the  United  States. 

In  the  United  States,  however,  the  later  artificial  construction 
of  the  English  courts  has  never  been  adopted,  and  it  is  clearly 
established,  in  accordance  with  the  statement  of  the  law  made 
by  Lord  Blackburn,"^  and  with  the  earlier  English  cases,"' 
that  the  acceptance  must  be  in  performance  of  the  contract; 
that  is,  "there  must  be  an  assent  by  the  buyer,  meant  to  be  final, 
that  this  part  of  the  goods  is  to  be  taken  by  him  as  his  property 
under  the  contract,  and  as  so  far  satisfying  the  contract."  "• 


"There  is  an  acceptance  of  goods  within  the  meaning  of  this  sec- 
tion when  the  buyer  does  any  act  In  relation  to  the  goods  which 
recognizes  a  pre-existing  contract  of  pale  whether  there  be  an  ae- 
ceptauce  In  performance  of  the  contract  or  not."  Sale  of  Goods 
Act,  §  4  (3).  See  Abbott  v.  Wolsey  (lSl»5)  2  Q.  B.  <J7;  Taylor  v. 
Great  Eastern  lly.  (1001)  1  K.  B.  774. 

iiT  Ante,  p.  82. 

118  Howe  V.  Palmer,  3  Barn.  &  Aid.  321;  Hanson  v.  Armitnge,  5 
Barn.  &  Aid.  557;  Phillips  v.  Bistoili,  2  Barn.  &  C.  511;  Smith  v. 
Surnam,  9  Barn.  &  C.  501;  Acebal  v.  Levy,  10  Bing.  37ij;  Norman 
V.  PlilUips.  14  Moos.  &  W.  277. 

ii'J  Caullvins  v.  Ilellman,  47  N.  Y.  449,  7  Am.  Rop.  401;  Stone  v. 
Browning,  51  N.  Y.  211.  G8  N.  Y.  598;  Cooke  v.  Millard.  (55  N.  Y.  352, 
370,  22  Am.  Rep.  G19;  Knight  v.  Mann.  118  Mass.  143;  Id.,  120  Mass. 
219;  Meehan  v.  Sharp,  151  Mass.  -504.  24  N.  K.  907;  Shepherd  ▼. 
Pressey,  32  N.  H.  49;  Gorham  v.  Fislior.  ;J0  Vt.  428;  Smith  v.  Fisher, 
59  Vt.  53,  7  Atl.  81G;  Hewes  v.  .Ionian.  ;'.;)  Md.  472.  17  Am.  Rep.  578: 
Bacon  v.  Kccles.  43  Wis.  227;  Scotten  v.  Sutter,  37  Mich.  520;  Simp- 
son V.  Kruradiclv.  28  Minn.  352,  354,  10  N.  W.  18;  .Jamison  v.  Simon, 
G8  Cal.  17,  8  Pac.  502;  Garfield  v.  Paris,  90  U.  S.  507.  24  L.  Va\.  821; 
Meyer  v.  Thompson.  10  Or.  194.  18  Pac.  10;  Schmidt  v.  Thomas. 
75  Wis.  520.  44  N.  W.  771;  Hershey  Lumber  Co.  v.  I>umber  Co., 
66  Minn.  449,  09  N.  W.  215;    Dinnle  v.  Johnson.  8  N.  D.  153.  77  N. 


92  FORMATION   OF   THE   CONTRACT.  (Ch.  2 

As  was  observed  in  Phillips  v.  Bistolli/^°  in  a  passage  frequent- 
ly quoted  in  the  American  cases  :  "There  must  be  a  delivery  of 
the  goods  by  the  vendor  with  an  intention  of  vesting  the  right 
of  possession  in  the  vendee,  and  there  must  be  an  actual  ac- 
ceptance by  the  latter,  with  an  intention  of  taking  to  the  pos- 
session as  owner."  And  in  the  leading  case  of  Caulkins  v.  Hell- 
man,  Rapallo,  J.,  said :  "Some  act  or  conduct  on  the  part  of 
the  vendee,  or  his  authorized  agent,  manifesting  an  intention 
to  accept  the  goods  as  a  performance  of  the  contract,  and  to 
appropriate  them,  is  required."  ^^^  This  view  is  not  inconsistent 
with  the  statement  of  Lord  Campbell  in  Morton  v.  Tibbett  that 
it  would  be  open  to  the  buyer,  after  acceptance  of  a  part,  to  ob- 
ject to  the  quantity  or  quality  of  the  residue,^ — a  principle  which 
is  fully  recognized  by  the  American  cases. ^^^  It  is  enough  if 
the  part  received  is  accepted  as  a  partial  fulfillment  of  the  con- 


W.  G12;  Dierson  v.  Petersmeyer,  109  Iowa,  233,  80  N.  W.  389.  Cf. 
Devine  v.  Warner,  75  Coiin.  375,  53  Atl.  782,  96  Am.  St.  Rep.  211; 
Id.,  76  Conn.  229,  56  Atl.  .562;  Mechanical  Boiler-Cleaner  Co.  v.  Kell- 
ner.  62  N.  J.  Law,  544,  43  Atl.  599. 

Where  two  shipments  of  goods  were  received  by  the  defendant, 
and  he  wrote  to  the  plaintiffs  complaining  of  the  quality,  and  stating 
that  he  would  look  them  over  again,  and,  if  they  were  not  all  right, 
would  return  them,  and  he  did  return  them  two  weeks  later  on  the 
ground  that  he  could  "do  better,"  there  was  evidence  from  which 
the  jury  might  infer  an  acceptance  and  receipt.  Standard  Wall 
Paper  Co.  v.  Towns,  72  N.  II.  324,  5B  Atl.  744.  "From  this  evi- 
dence," said  the  court,  "it  might  be  inferred  that  the  plaintiff  ex- 
amined the  goods  with  the  intention  of  accepting  them  if  they  cor- 
responded with  the  sample,  and  that  they  were  accepted  by  him, 
as  they  did  in  fact  so  correspond,  but  were  subsequently  returned 
because,  in  the  language  of  his  letter,  he  found  he  could  'do  better.' 
Whether  this  inference  should  be  drawn  is  a  question  of  fact,  as 
is  also  the  question  what  inference  should  be  made  from  the  length 
of  time  the  goods  were  kept  before  they  were  returned."  See  Sales 
Act,  §  4  (3). 

120  2  Barn.  &  C.  511. 

121  47  N.  Y.  449,  7  Am.  Rep.  461. 

122  Garfield  v.  Paris,  96  U.  S.  557,  562,  24  Ia  Ed.  821;  Hewes  v. 
Jordan,  39  Md.  472,  483,  17  Am.  Rep.  578.  In  Remick  v.  Sandford, 
120  Mass.  309,  316,  it  is  said  by  Devens,  J.,  that  "if  the  buyer  ac- 
cepts the  goods  as  those  which  he  purchased  he  may  afterwards 
reject  them  if  they  are  not  what  they  were  warranted  to  be,  but  the 
statute  is  satisfied."     See  post,  p.  369. 


§§  30-31)  ACCErTANCK    AM)    IlKCKIIT.  93 

tract.  It  must,  however,  distinctly  appear  that  the  poods  were 
accepted  under  the  contract.*-^  This  was  stronj^ly  ilhistrated 
in  Atherton  v.  Ncwhall,*-*  where  a  small  part  of  the  {^^oods 
was  delivered  by  an  expressman,  and  the  buyer,  having  learned 
that  the  rest  of  the  goods  had  been  destroyed  by  tire,  at  once 
notified  the  seller  that  he  would  pay  only  for  the  part  received. 
It  was  held  that  there  was  no  acceptance.  Gray,  C.  J.,  said : 
"The  acceptance  by  the  buyer  of  the  part  brought  by  the  ex- 
pressman was  not  a  sufficient  acceptance  to  take  the  sale  of  the 
whole  out  of  the  statute,  because  it  appears  that  it  was  not  with 
the  intention  to  perform  the  whole  contract,  and  to  assert  the 
buyer's  ownership  under  it,  but.  on  the  contrary,  that  he  im- 
mediately informed  the  seller's  clerk  that  he  would  be  responsi- 
ble only  for  the  part  received." 


SAME— ACTUAL   RECEIPT. 

30.  Actual   receipt   is   the    taking  possession   of   the    Roods   by 

the  buyer  Tvith  the  seller's  consent.  It  iuiplics  such 
a  transfer  of  possession  as  to  divest  the  seller's  lien, 
and  may  be  effected: 

(a)  By  the  actual  delivery  of  the  goods  by  the  seller  to  the 

buyer  or  to  his  agent;  or 

(b)  By  agreement. 

31,  BY    AGREEMENT.       An    actual    receipt    takes    place    by 

agreement: 

(a)  AVhen  the  goods  are  in  the  actual  possession  of  the  sel- 

ler, if  he  becomes  bailee  of  the  goods  for  the  buyer. 

(b)  When  the  goods  are  in  the  custo<ly  of  a  third  person  as 

bailee  of  the  seller,  if  such  third  person,  with  the 
consent  of  the  seller,  becomes  bailee  of  the  buyer. 

(c)  When    the    goods    are    in    the    custody    of    the    buyer,    as 

bailee  of  the  seller,  if  with  the  consent  of  the  seller 
he   ceases   to   hold  them   as   bailee,   and   holds   them   as 

OWTQCr. 

123  Davis  V.  Eastman,  1  Allen  (Mass.)  422;  Townscnd  v.  Ilar- 
graves,  IIS  Mass.  325;  Athorton  v.  Newhall.  1-J3  Mass.  141,  2'*  Am. 
Ucp.  47:  Van  Woort  v.  Railroad  Co..  »>7  N.  Y.  o.iS;  Matthiesseu  & 
Weiehers  Reflning  Co.  v.  MoMalmns  Adin'r,  38  N.  J.  Law,  53S. 

"♦  123  Mass.  141,  25  Am.  Kep.  47. 


94  FORMATION  OF  THE   CONTRACT.  (Ch.  2 

Where  acceptance  is  shown,  a  very  hberal  construction  is 
placed  on  actual  receipt.^^^  The  simplest  way  in  which  a  trans- 
fer of  possession  may  be  effected  is  by  the  removal  of  the  goods 
by  the  buyer  or  his  agent.^^*  Receipt,  however,  implies  deliv- 
ery,^-^  and  the  receipt  must  be  with  the  seller's  consent,  and 
with  the  intention  on  his  part  of  transferring  possession  to  the 
buyer  as  owner.  The  test  for  determining  whether  there  has 
been  such  a  transfer  of  possession  is  whether  the  seller  has  part- 
ed with  his  lien.^^^  If  the  goods  are  to  be  forwarded  to  the 
buyer,  the  time  when  the  possession  is  transferred  depends 
on  the  character  of  the  person  by  whom  the  goods  are  car- 
ried. If  they  are  carried  by  the  seller's  servant  or  agent,  there 
is,  of  course,  no  transfer  of  possession  so  long  as  they  remain  in 
his  hands. ^^^  If  they  are  forwarded  by  a  carrier  designated  by 
the  buyer,  an  actual  receipt  takes  place  when  they  are  delivered 
to  him  for  carriage. ^^°  And,  where  goods  are  forwarded  by  a 
common  carrier,  the  carrier  is,  in  the  absence  of  special  agree- 
ment, regarded  as  the  agent  of  the  buyer,  and  the  result  is  the 
same  as  if  the  carrier  were  specially  designated  by  him,^^^  The 
seller  may,  however,  reserve  the  right  of  possession  notwith- 
standing the  delivery  of  the  goods  to  the  carrier,  and  in  such  a 

i25Chalm.  Sale  of  Goods  (6th  Ed.)  159. 

i26Blackb.  Sales,  25;  Benj.  Sales,  §  180;  Rodgers  v.  Jones,  129 
Mass.  420,  422. 

127  Saunders  v.  Topp,  4  Exch.  390,  per  Parke,  B. 

ii28  Phillips  V.  Bistolli,  2  Barn.  &  C.  511;  Baldey  v.  Parker,  Id. 
37,  per  Holroyd,  J.;  Bill  y.  Bament.  9  Mees.  &  W.  37;  Ousack  v. 
Robinson,  30  Law  J.  Q.  B.  264,  1  Best  &  S.  299;  Castle  v.  Sworder, 
29  Law  J.  Exch.  235,  30  Law  J.  Exch.  310,  6  Hurl.  &  N.  832;  Saf- 
ford  V.  McDonough,  120  Mass.  290;  Rodgers  v.  Jones,  129  Mass.  420; 
Ex  parte  Safford,  2  Low.  (U.  S.)  563.  Fed.  Cas.  No.  12,212;  Green 
V.  Merriam,  28  Vt.  801;  Marsh  v.  Rouse,  44  N.  Y.  643;  Stone  v. 
Browning,  51  N.  Y.  211;  Maxwell  v.  Brown,  39  Me.  98,  103,  63  Am. 
Dee.  605;  Gardet  v.  Belknap,  1  Cal.  399;  Hinchman  v.  Lincoln,  124 
U.  S.  38,  8  Sup.  Ct.  309,  31  L.  Ed.  337;   post,  p.  317. 

129  Grey  v.  Gary,  9  Daly,  (N.  Y.)  363;  Agnew  v.  Dumas.  64  Vt. 
147,  23  Atl.  034. 

130  Bullock  V.  Tschergi,  4  McCrary  (U.  S.)  184,  13  Fed.  345;  Cross 
V.  O'Donnell,  44  N.  Y.  661,  4  Am.  Rep.  721;  Wilcox  Silver  Plate 
Co.  V.  Green,  72  N.  Y.  17.  See,  also,  cases  cited  ante,  p.  89,  note- 
Ill,  and  post,  p.  290. 

131  Post,  p.  290. 


§§  30-31)  ACCEPTANCE   AND    RECEIPT.  !)."> 

case  delivery  to  the  carrier  does  not  constitute  an  actual  re- 
ceipt.^^^ 

Actual  Receipt  by  Agreement. 

The  possession  of  the  goods  may,  however,  be  transferred 
and  an  actual  receipt  take  place,  by  agreement,  without  the 
physical  delivery  of  the  goods. 

Same — When  Goods  are  in  Possession  of  Seller. 

If  the  goods  are  in  the  possession  of  the  seller  at  the  time  of 
the  contract,  an  actual  receipt  takes  place  if  the  parties  agree 
that  the  seller  shall  cease  to  hold  as  owner,  and  shall  assume 
the  character  of  bailee  or  agent  of  the  buyer  in  respect  to  the 
custody  of  the  goods,  the  possession  of  the  seller  being  by  the 
agreement  converted  into  the  possession  of  the  buyer.^"  A 
leading  case  on  this  point  is  Elmore  v.  Stone,''*  where  the 
buyer  of  horses  left  them  with  the  seller  at  livery.  It  was  held 
that  as  soon  as  the  seller  consented  to  keep  them  at  livery  his 
possession  was  changed,  and  that  from  that  time  he  held,  not 
as  owner,  but  as  any  other  liveryman  might  do.  But  an  agree- 
ment to  hold  in  this  changed  character  will  not  readily  be  pre- 
sumed, and  it  must  distinctly  appear  that  the  seller  has  con- 
sented to  abandon  his  lien.'-^"*  Some  cases  even  hold  that  a 
mere  agreement  that  the  seller  shall  hold  as  bailee  is  not  enough, 
and  that  some  act  is  necessary  to  establish  the  changed  char- 
acter of  the  ownership ;  ''*    but  on  principle  it  would  seem 

182  Tost,  p.  1G2. 

138  Elmore  v.  Stone,  1  Taunt.  45S;  Beaumont  v.  Brengorl,  5  C.  B. 
301;  Marvin  v.  Wallis.  0  El.  &  Bl.  72G,  25  Law  J.  Q.  B.  3<',9:  Cnstlo 
V.  Swordcr.  20  Law  J.  Exoh.  235.  30  Law  J.  Exch.  310,  0  Hurl,  & 
N.  832;  Cusack  v.  Robinson,  1  Best  &  S.  200.  per  Blackburn.  J. 
Green  v.  Merriam,  28  Vt.  801;  Means  v.  Williamson,  37  Me.  .1."G:  Ex 
parte  SaEford.  2  Low.  (U.  S.)  5G3,  Fed.  Cas.  No.  12,212;  Janvrin  v. 
Maxwell.  23  Wis.  51;  Rodgers  v.  Jones,  120  Mass.  420.  422;  Saf- 
ford  V.  McDonough.  120  Mass.  290,  291;  Webster  v.  Anderson.  42 
Mich.  554,  4  N.  W.  288,  36  Am,  Rep.  452;  Devlne  v.  Warner.  75  Conn. 
375,  53  Atl.  782,  96  Am.  St.  Rep.  211;  Id..  76  Conn.  229,  56  AU.  5«J2: 
post,  p.  271. 

134  1  Taunt.  458. 

135  Tempest  v.  Fltzjrorald.  3  Barn.  &  Aid.  680;  Carter  v.  Tous- 
salnt,  5  Barn.  &  Aid.  855;  Holmes  v.  Hosklns,  9  Exch.  753.  Seo 
Blackb.  Sales,  26;  post.  p.  271. 

136  Matthiessen  &  W.  Hefinin?  Co.  v.  McMahon's  Adm'r.  R*?  N.  J. 


96  FORMATION   OF   THE   CONTRACT.  (Ch.  2 

that  the  only  question  is  whether  the  agreement  is  distinctly  es- 
tablished.^"' 

Same — When  Goods  are  in  Possession  of  Third  Person. 

If  the  goods  at  the  time  of  the  contract  are  in  the  custody 
of  a  third  person  as  bailee,  an  actual  receipt  takes  place  when 
the  buyer,  the  seller,  and  the  bailee  agree  that  the  latter  shall 
cease  to  hold  for  the  seller,  and  shall  hold  for  the  buyer,  or,  as 
is  sometimes  said,  when  the  bailee,  with  the  seller's  consent,  at- 
torns to  the  buyer.^^^  The  possession  of  the  agent  being,  in 
contemplation  of  law,  the  possession  of  the  principal,  a  trans- 
fer of  possession  is  thus  effected  by  simply  constituting  the  cus- 
todian the  agent  of  the  buyer.  The  consent  of  all  parties  is,  of 
course,  essential,  and  therefore  an  order  from  the  seller  to  a 
warehouseman,  wharfinger,  carrier,  or  other  bailee  to  deliver 
the  goods  to  the  buyer  will  be  inoperative  to  transfer  the  posses- 
sion, unless  the  bailee  attorns.^^" 

Law,  536 ;  Kirby  v.  Johusou,  22  Mo.  354 ;  Bowers  v.  Anderson,  49  Ga. 
143 ;  Malone  v.  Plato,  22  Cal.  103.  It  is  said  in  Shindler  v.  Houston, 
1  N.  Y.  261,  49  Am.  Dec.  316,  and  some  otber  cases  (ante,  p.  88),  that 
mere  words  cannot  constitute  acceptance  and  receipt,  and  ttiat  su- 
peradded to  the  language  of  the  contract  there  must  be  some  acts 
of  the  parties  amounting  to  a  change  of  possession.  See,  also,  Bailey 
V.  Ogden,  3  Johns.  (N.  Y.)  399;  Ely  v.  Ormsby,  12  Barb.  (N.  Y.)  570; 
Hallenbeck  v.  Cochran,  20  Hun  (N.  Y.)  416;  Gorman  v.  Brossard, 
120  Mich.  611,  79  N.  W.  903.  In  those  cases  there  was  nothing  to 
show  a  change  of  possession  from  that  of  owner  to  that  of  bailee. 
But  in  Rappleye  v.  Adee,  65  Barb.  (N.  Y.)  589,  where  the  sheep 
sold  were  separated  from  the  rest  of  the  seller's  flock,  the  buyer's 
mark  put  upon  them,  and  the  parties  agreed  to  let  them  run  wnth 
the  seller's  sheep  for  a  few  days,  it  was  held  that  the  evidence  war- 
ranted the  jury  in  finding  delivery  and  acceptance,  and  that  the  rule 
of  Shindler  v.  Houston  was  properly  applied.  See,  also,  Wylie  v. 
Kelly,  41  Barb.  (N.  Y.)  594. 

137  Benj.  Sales,  §  182. 

13  8  Bentall  v.  Burn,  3  Barn.  &  C.  423;  Farina  v.  Home.  16  Mees. 
&  W.  119;  Simmonds  v.  Humble,  13  G.  B.  (N.  S.)  258;  Townsend  v. 
Hargraves,  118  Mass.  325.  3.S2;  Bassett  v.  Camp,  54  Vt.  2.32;  post, 
p.  319.  See  St.  Paul  &  Minneapolis  Trust  Co.  v.  Howell,  59  Mixm. 
295,  61  N.  W.  141. 

139  Cases  cited  in  note  138,  supra.  But  where  the  goods  were  in  a 
United  States  bonded  warehouse,  and  the  duties  were  unpaid,  it  was 
held  that  an  attornment  by  the  warehouseman  could  have  no  effect 
to  change  the  possession,  since  the  goods  were  in  possession  of  the 


§§  30-31)  ACCEPTAN'CE    AND    UKCKIl'T.  97 

If,  however,  the  goods  arc  on  tlie  premises  of  a  third  person, 
who  is  not  bailee,  as  linil^er  lyinj^  at  the  disposal  of  the  seller 
on  land  of  a  person  from  whom  he  bought  it,  or  at  a  public 
wharf,  "delivery  may  be  effected  by  the  vendor's  putting  th« 
goods  at  the  disposal  of  the  vendee  and  suffering  the  latter  to 
take  actual  control  of  them."  ^*° 

Same — IVhcn  Goods  arc  in  Possession  of  Buyer. 

If  the  goods,  at  the  time  of  the  contract,  are  already  in  the 
possession  of  the  buyer,  an  actual  receipt  takes  place  when  the 
parties  agree  that  the  latter  shall  cease  to  hold  them  as  bailee, 
and  shall  hold  them  as  owner.^*^  Thus,  in  Lilly  white  v.  Dev- 
ereux,^*^  it  is  said  that  if  the  buyer,  under  such  circumstances, 
deals  with  the  goods  in  a  manner  inconsistent  with  the  supposi- 
tion that  his  former  possession  remains  unchanged,  he  may 
be  said  to  have  accepted  and  actually  received  them ;  the  court 
apparently  taking  the  view  that  the  consent  of  the  seller  to  the 
transfer  of  possession  was  given  by  entering  into  the  contract, 
and  that  the  same  acts  on  the  part  of  the  seller  which  were  evi- 
dence of  an  acceptance  were  also  evidence  that  he  had  begun  to 
hold  in  the  character  of  owner. 

United  States,  and  the  warehouseman  was  not  the  bailee  of  the  sel- 
ler.   In  re  Clifford,  2  Sawy.  (U.  S.)  428,  Fed.  Cas.  No.  2.S'.t:'>. 

Where  phiintlff  purchased  by  verbal  contract  the  .seller's  undi- 
vided half  interest  in  a  machine  which  Avas  In  the  possession  of 
defendant,  who  was  the  owner  of  the  other  half,  the  statute  was  not 
satisfied,  there  being  no  evidence  of  .acceptance  and  receipt.  Gerudt 
v.  Conradt,  117  Wis.  15,  93  N.  W.  S04. 

KoBenj.  Sales,  §  178.  See  Tausley  v.  Turner,  2  Bing.  N,  C.  151; 
Cooper  V.  Bill.  3  Hurl.  &  C.  722;  Marshall  v.  Green.  1  C.  T.  Dlv. 
.T),  per  Grove,  .T.:  Leonard  v.  Davis,  1  Black.  (U.  S.)  470.  17  L.  Ed. 
222;  Thompson  v.  Railroad  Co.,  28  Md.  3'.)t);  Brewster  v.  Loith.  1 
Minn.  50  (Gil.  40).  Cf.  Langd.  Cas.  Sales,  hrS.i.  So  of  logs  tloatlnc 
in  the  river.  Tost,  p.  274.  But  see  Sliindler  v.  Houston,  1  N.  Y. 
201,  49  Am.  Dec.  310;  Gorman  v.  Brossard,  120  Mich.  Oil,  79  N.  W. 
003. 

Ki  Edan  v.  Dudfield,  1  Q.  B.  300;  Lillywliite  v.  Deveroux.  15  Meos. 
&  W.  28.");  Snider  v.  Tlirall,  5(5  Wis.  074.  14  N.  W.  814;  Lanpd.  Cas. 
Sales,  1023;  Benj.  Sales,  §  173.  Contra:  Eollett  Wool  Co.  v.  Deposit 
Co..  84  App.  Div.  151,  82  N.  Y.  Supp.  597.  Cf.  MarUhani  v.  Jaudon. 
41  N.  Y.  2;'.5.  242;  Brown  v.  Warren.  43  N.  II.  4.30:  Dorsey  r.  Pike. 
50  Hun  (N.  Y.)  534,  3  N.  Y.  Supp.  730.     Tost.  p.  318. 

1*2  15  Mees.  &  W.  285. 

TiTF.SAi.Es(2n  Ed.)— 7 


98  FORMATION   OF  THE   CONTRACT.  (Ch.  2 


EARNEST  OR  PART  PAYMENT. 

32.  Earnest  is  sometliing  of  value,   not  forming  part  of  the 

price  given,  and  received  to  mark  the  final  assent  of 
the  parties  to  the  bargain. 

33.  Part  payment  may  be  made  at  or  subsequently  to  the  time 

of  the  contract  of  sale,  either  in  money  or  anything 
of  value,  or  by  the  actual  extinguishment  of  an  eidst- 
ing  indebtedness  by  means  of  an  agreement  independ- 
ent of  the  contract  of  sale. 

Earnest. 

The  giving  of  earnest  was  formerly  a  prevalent  custom  in 
England,  but  it  has  fallen  so  much  into  disuse  that  the  provi- 
sion in  respect  to  it  is  of  little  practical  importance.  Earnest 
may  be  money  or  some  gift  or  token  given  ^*^  by  the  buyer  to 
the  seller  to  mark  the  final  assent  of  both  to  the  bargain.^**  It 
follows  that  earnest  and  part  payment  are  distinct.^*^  In  a 
Massachusetts  case,^*®  however,  it  was  said  that  earnest  is  re- 
garded as  part  payment  of  the  price, — a  dictum  which  was  hard- 
ly necessary  to  support  the  decision  that  money  deposited  with  a 
third  person  by  the  parties,  to  be  paid  to  either  as  a  forfeiture  if 
the  other  should  neglect  to  fulfill  his  part  of  the  contract,  was 
not  given  in  earnest.  The  thing  must  have  some  value,  and  on 
this  ground  a  note  given  by  the  buyer  for  the  price,  and  void  for 
want  of  consideration,  could  not  be  regarded  as  given  in  earn- 
est.i^^ 

Part  Payment. 

The  part  payment,  like  the  acceptance  and  receipt,  may  be 
subsequent  to  the  contract  of  sale,^*^  unless,  as  in  some  states, 

143  Where  the  buyer  drew  a  shilling  across  the  seller's  hand,  which 
was  called  "striking  a  bargain,"  but  kept  the  coin,  the  statute  was 
not  satisfied.     Blenkinsop  v.  Claj'ton,  7  Taunt.  597. 

144  Brae.  1,  2,  c.  27. 

i45Beuj.  Sales,  §  189;  Kerr,  Dig.  Sale,  §  16;  Howe  v.  Smith,  27 
Ch.  Div.  89,  101,  per  Frj-,  L.  J. 

146  Howe  V.  Haj'ward,  108  Mass.  54,  11  Am.  Rep.  306.  See,  also, 
Noakes  v.  Morey,  30  Ind.  103. 

147  Krohn  v.  Bantz,  68  Ind.  277. 

148  Walker  v.  Nussey,  16  Mees.  &  W.  302,  per  Parke,  B.;   Thomp- 


§§  32-33)  EARNEST   OK    TAUT    PAYMKNT.  99 

the  statute  expressly  provides  that  it  must  be  at  the  time  of  the 
contract.'"    The  payment  must,  of  course,  be  accepted."* 

Payment  need  not  be  in  money,  but  may  be  by  means  of  any- 
thing of  value  which  by  mutual  ajjreemcnt  is  given  by  the  buyer, 
and  accepted  by  the  seller,  on  account  or  in  i)art  satisfaction 
of  the  price.'"'  Thus  it  would  seem  that  the  transfer  of  a  bill 
or  note  would  suffice;  '"  and,  under  the  New  York  statute  re- 
quiring payment  at  the  time,  the  delivery  of  a  check,  which  was 
duly  paid,  has  been  held  sufficient.'""  But  the  delivery  of  the 
buyer's  note  docs  not  operate  as  payment.'"*  Nor  does  a  mere 
agreement,  forming  part  of  the  contract  of  sale,  to  set  off  or  ap- 
ply in  payment  a  debt  due  to  the  buyer  constitute  payment.'"* 
Such  an  agreement,  to  be  effective,  must  be  by  independent 
contract,'""  and  many  cases  even  hold  that  mere  words  are  not 
sufficient,  and  that  some  act,  such  as  the  surrender  or  cancel- 
lation of  the  evidence  of  the  indebtedness,  or  a  receipt,  is  req- 
uisite.^"^   But,  on  principle,  any  independent  verbal  agreement, 

son  V.  Alger,  12  Mete.  (Mass.)  428,  435;  Marsh  v.  Ilyile.  3  Gray 
(Mass.)  331. 

1*0  Hunter  v.  Wetsoll,  57  X.  Y.  3").  15  Am.  Kop.  508;  Id..  84  N 
Y.  541),  38  Am.  Rep.  544:  Jackson  v.  Tapper,  101  N.  Y.  515.  5  N.  E. 
65:  Bates  v.  Chesebro,  32  Wis.  5U4;  Kerkhof  v.  I'aper  Co..  08  Wis. 
074,  32  X.  W.  700;  Crosby  Hardwood  Co.  v.  Trester.  'JO  Wis.  412,  03 
X.  W.  1(157. 

160  Edi^erton  v.  Hodge,  41  Vt.  070;  Hershey  Lumber  Co.  v.  Lumber 
Co.,  0(1  .Minn.  449,  0!)  X.  W.  215. 

151  White  V.  Drew,  50  How.  Trac.  53;  Sharp  v.  Carroll,  CO  Wis. 
02,  27  X.  W.  832  (surrender  of  note  of  seller  held  by  buyer) ;  Weir 
V.  Hudnut,  115  Ind.  .525,  IS  X.  E.  24;  P.urton  v.  Gage,  85  Minn.  355, 
88  X.  W.  007;    Benj.  Sales.  §  l'.»4. 

152  Chamberlyn  v.  Delarive.  2  Wils.  3.53 ;  Kearslake  v.  Morgan,  5 
Term  R.  513;    Griffiths  v.  Owen.  13  Mees.  ^r  W.  58. 

163  Hunter  v.  Wetsell.  84  X.  Y.  5-10,  .38  Am.  Rep.  544. 

i5*Krohn  v.  Bantz,  08  Ind.  277;  Combs  v.  Bateman,  10  Barb. 
fX.  Y.)  .573;    Hooker  v.  Knab,  20  Wis.  511. 

1 ''5  Walker  v.  Xussey,  10  Mens.  &  W.  302;  Arlcber  v.  Zeh.  5  HIH 
(X.  Y.)  200;  Mattiee  r.  Allen.  *42  X.  Y.  403;  Pitney  v.  Glen's  Falls 
Ins.  Co.,  05  X.  Y.  0;  Matthiessen  &  W.  Rofming  Co.  v.  MeMahon's 
Adm'r,  38  X.  J.  Law.  530;  Galbraith  v.  Holmes,  15  Ind.  App.  34. 
43  X.  B.  575:   Xorton  v.  Davison    (ISOO)  1  Q.  B.  401. 

180  Walker  v.  Xussey,  10  Mees.  &  W.  302,  per  Parke,  B.;  Xorwo- 
gian  Plow  Co.  v.  Hanthorn,  71  Wis.  529,  37  X.  W.  825. 

iBT  See  Artcher  t.  Zeh,  Mattiee  v,  Allen,  Pitney  v.   Glon's  Falls 


100  FORMATION  OF  THE  CONTRACT.  (Ch.  2 

whereby  the  indebtedness  is  extinguished,  would  seem  to  be 
sufficient.^  °' 


TH£   NOTE   OR   MEMORANDUM. 

34.  The  note  or  memorandnni  must  state: 

(a)  The  names   or   descriptions   of   the   parties   in  their  re- 

spective capacities  as  seller  aoid  buyer. 

(b)  The  price,  if  agreed  on. 

(c)  The  goods  sold. 

(d)  Any  other  material  terms  of  the  contract,  except  that 

it  need  not  state  the  consideration  of  the  promise  of 
the  party  to  be  charged. 

35.  The  note  or  memorandum  may  be  made  at  any  time  be- 

fore action  brought,  and  may  be  ^vritten  on  separate 
papers,  provided  they  are  all  signed  by  the  party  to 
be  charged  or  his  agent,  or  that  such  as  are  not  so 
signed  are  attached  to  or  referred  to  in  a  signed  pa^ 
per. 

36.  The   note   or  memorandum  need   not  be   delivered   to  the 

party  seeking  to  enforce  the  contract;  it  is  sufficient 
if  it  admits  the  contract. 

Difference  hetzveen  Contract  in  Writing  and  Note  or  Memoran- 
dum. 

At  common  law,  the  parties  to  a  contract  may  reduce  it  to 
writing,  or  may  agree  upon  some  existing  writing  as  contain- 
ing the  terms  of  contract,  and  when  they  do  so  they  are  bound 
by  the  terms  of  the  written  contract,  and  are  not  allowed  to  of- 
fer proof  of  different  or  additional  terms.  The  same  rule  ap- 
plies to  a  writing  which  they  agree  upon  as  containing  part  of 
the  terms  of  the  contract ;  for  example,  the  specifications  of  an 
article  to  be  manufactured.  In  all  such  cases  the  contract,  so 
far  as  it  is  reduced  to  writing,  cannot,  in  general,  be  proved  by 
any  other  means  than  by  the  writing.    This  result  takes  place, 

Ins.  Co.,  Matthiessen  &  W.  Eefining  Co.  v.  McMahon's  Adm'r,  cited, 
in  note  155;  Brabin  v.  Hyde,  32  N.  Y.  519;  Gorman  v.  Brossard. 
120  Mich.  611,  79  N.  W.  903. 

158  Dow  V.  Worthen,  37  Vt.  108.  An  agi-eement  that  the  buyer 
shall  pay  a  debt  due  by  the  seller  to  a  third  person  assented  to  by 
the  latter.  Cotterill  v.  Stevens,  10  Wis.  422;  Langd.  Cas.  Sales, 
1037. 


§§34-30)  THE    NOTE    OR    MKMOKANDUM.  KU 

of  course,  only  when  the  writing  is  by  the  consent  of  both 
parties  agreed  upon  as  containing  their  contract,  in  whole  or  in 
part.^''"  The  statute  of  frauds  leaves  the  common-law  rule  in 
respect  to  contracts  in  writing  as  it  was  before.  If  the  con- 
tract be  in  writing,  the  writing  must  be  proved  as  containing  the 
only  legal  evidence  of  the  terms  of  the  contract,  even  though  the 
statute  has  been  satisfied  by  acceptance  and  receipt,  or  by  earn- 
est or  part  payment,  and  although,  for  lack  of  the  signature 
of  the  party  to  be  charged,  the  writing  would  not  be  sufficient 
as  a  statutory  note  or  memorandum.^'"  The  note  or  memoran- 
dum diflFers  from  a  contract  in  writing,  in  that  under  the  stat- 
ute any  writing  which  contains  the  terms  of  the  contract  is 
sufficient,  if  it  be  signed  by  the  party  to  be  charged.  A  con- 
tract in  writing,  indeed,  if  signed  by  the  party  to  be  charged, 
will  satisfy  the  statute,  but  a  mere  admission  in  writing  of  an 
antecedent  oral  contract  is  sufficient.^"^  In  other  words,  the 
statute  may  be  satisfied  in  writing  in  two  ways :  By  putting  the 
contract  in  writing,  or  by  furnishing  evidence  in  writing  of  an 
oral  contract.^'^  A  mere  note  or  memorandum,  however,  unlike 
a  contract  in  writing,  need  not  be  introduced  in  evidence  at  all, 
if  the  contract  can  be  brought  within  the  first  or  second  ex- 
ceptions, though  in  such  a  case  it  may  still  be  introduced  as  an 
admission  of  the  terms  of  the  contract,  of  which  it  would  be 
strong,  though  not  conclusive,  evidence.^*" 

Note  or  Memorandum  in  the  Nature  of  an  Admission. 

The  note  or  memorandum  is  in  the  nature  of  an  admission  of 
the  contract  by  the  party  to  be  charged.  Thus  it  may  be  in  the 
form  of  a  letter,  and  it  is  immaterial  to  whom  the  U  tter  is  ad- 
dressed— whether  to  a  third  person  ^'*  or  to  the  writer's  own 

159  Blackb.  Sales,  40-42;    Benj.  Sales,  §§  201-20n. 

160  Slevewright  v.  Archibald,  17  Q.  B.  103,  per  Erie,  J. 

101  Sievewrijiht  v.  Archibald.  17  Q.  B.  lai.  per  Batteson,  J.:  Snun- 
derson  v.  Jackson,  2  Bos.  &  P.  238,  per  Lord  tjldon;  Parton  v.  Crofts, 
33  Law  J.  C.  P.  ISO,  per  Brio.  C.  J.;  Bailey  v.  Sweetinp.  0  C.  B. 
(N.  S.)  843,  30  Law  J.  C.  P.  150;  Lerned  v.  Wannemacher.  9  Allen 
(Mass.)  412,  416:  Townsend  v.  ITnrsravcs,  118  Mass.  325,  334;  Bird 
V.  Muiiroe,  60  Me.  337.  22  Am.  Rep.  571. 

ie2Lanfrd.  Cas.  Sales,  1032. 

103  Blackb.  Sales.  42. 

i«*  Peabody  v.  Speyers,  56  N.  T.  230;  Moore  v.  Mountcastle.  Gl 
Mo.  424. 


102  FORMATION   OF   THE   CONTRACT.  (Ch.  2 

agent.^®'  It  has  been  held  that  the  memorandum  is  sufficient 
though  never  delivered;  ^^^  for  example,  if  it  be  in  the  form 
of  a  resolution  of  a  corporation  sought  to  be  charged.^®^  It  is 
even  sufficient  if  it  is  in  the  form  of  a  letter  repudiating/®*  but 
not  denying,  the  existence  of  the  contract.^**  It  is  enough  if 
the  memorandum  be  in  existence  at  the  time  the  action  is 
brought.^^''  But  the  mem.orandum  cannot  be  regarded  as  being 
nothing  more  than  evidence  of  the  contract,  since  it  is  held 
that  its  existence,  unless  the  statute  be  otherwise  satisfied,  is  a 
condition  precedent  to  the  right  of  action.^'^^ 

What  the  Note  or  Memorandum  must  Contain — Names  of 

Parties. 

The  statute  itself  expressly  provides  that  the  name  of  the 
.party  to  be  charged  must  be  signed,  and  it  has  been  settled  b}' 


165  Gibson  v.  Holland,  L.  R.  1  C.  P.  1,  35  Law  J.  C.  P.  5;  Kleeman 
V.  Collins,  9  Bush  (Ky.)  460,  467;  Lee  v.  Cherry,  85  Tenn.  707,  4  S. 
W.  835,  4  Am.  St.  Rep.  800.  Contra:  Steel  v.  Fife,  48  Iowa,  99,  30 
Am.  Rep.  388.     See  Browne,  St.  Frauds,  §  354a. 

166  Drury  v.  Young,  58  Md.  546,  42  Am.  Rep.  343.  But  see  Parlier 
T.  Parker,  1  Gray  (Mass.)  40O;   Browne,  St.  Frauds,  §  354. 

A  signed,  but  undelivered,  lease  may  be  given  in  evidence  to  prove 
an  agreement  upon  the  details  of  a  lease  pursuant  to  one  of  the 
terms  of  a  previously  signed  memorandum  in  writing  of  an  oral 
agreement  for  a  lease;  and  if  said  previous  memorandum  of  agree- 
ment for  a  lease  and  the  signed,  but  undelivered,  lease,  taken  to- 
gether, show  a  completed  agreement  upon  the  terms  of  a  lease,  the 
statute  of  frauds  is  satisfied,  and  specific  performance  may  be  de- 
creed. Charlton  v.  Columbia  Real  Estate  Co.,  67  N.  J.  Eq.  629,  60 
Atl.  192,  69  L.  R.  A.  .394,  110  Am.  St.  Rep.  495. 

167  Johnson  v.  Society,  11  Allen  (Mass.)  123;  Tufts  v.  Mining  Co., 
14  Allen  (Mass.)  407;  Argus  Co.  v.  City  of  Albany,  55  N.  Y.  495,  14 
Am.  Rep.  296. 

168  Bailey  v.  Sweeting,  9  C.  B.  (N.  S.)  843,  30  Law  J.  C.  P.  150: 
Wilkinson  v,  Evans,  L.  R.  1  C.  P.,  at  page  411;  Leather  Cloth  Co.  v. 
Hieronimus,  L.  R.  10  Q.  B.  140;  Louisville  Asphalt  Varnish  Co.  v. 
Lorick,  29  S.  C.  533,  8  S.  E.  8,  2  L.  R.  A.  212;  Drury  v.  Young,  58 
Md.  546,  42  Am.  Rep.  343. 

169  Bacon  v.  Eccles,  43  Wis.  227, 

170  See  cases  cited  in  next  note. 

171  Bill  V.  Bament,  9  Mees.  &  W.  36.  See,  also,  Gibson  v.  Hol- 
land, L.  R.  1  C.  P.  1,  35  Law  J.  C.  F.  5,  per  Willes.  J.;  Lucas  v. 
Dixon,  22  Q.  B.  Div.  357;  Bird  v.  Munroe,  66  Me.  337,  22  Am.  Rep. 
571;    Phillips  v.  Mills.  55  Ga.  633. 


§§  34-3G)  THK    NOTK    OK    .MKM(  >UAM)l  M.  103 

the  decisions  that  the  name  or  description  of  the  other  party 
must  appear,  since  it  takes  two  to  make  a  bargain,  and  other- 
wise no  contract  is  shown.  The  mcmoranchmi  must  not  only 
contain  the  names  or  descriptions  of  the  buyer  *^*  and  of  the 
seller,^^^  but  must  show  which  is  buyer  and  which  is  seller.*^* 
A  description  of  the  parties,  however,  instead  of  their  names,  is 
sufficient,  and  parol  evidence  is  admissible  to  identify  the  per- 
sons descriljcd.^^"  Tims,  when  an  aj:;;ent  signs  his  name  without 
mentioning  a  principal,  the  other  party  may  show  that  the  con- 
tract was  really  made  with  the  principal,  who  has  chosen  to 
describe  himself  by  the  name  of  his  agent,  just  as  it  would  be 
admissible  to  show  his  identity  if  he  had  used  a  feigned 
name.^^'     But  the  converse  of  the  proposition  does  not  hold 

i72CbanipIon  v.  riuramer.  1  Ros.  &  P.  (N.  R.)  252.  See.  also, 
Sanborn  v.  Flagler,  9  Allen  (Mass.)  474.  47G;  Williams  v.  Robinson. 
73  Me.  38G,  40  Am.  Rep.  3.j2;  McConnell  v.  BriUhart.  17  111.  3M. 
(jy  Am.  Dec.  GGl;  Mayer  v.  Adrian.  77  N.  C.  83;  Harvey  v.  Stevens. 
43  Vt.  Go7;  Peoria  Grape  Sugar  Co.  v.  Babcock  Co.  (C.  C.)  07  Fed. 
892. 

i73Kiinltz  V.  Surry,  5  Esp.  207;  Vandenbergh  v.  Spooner,  L.  R. 
1  Excb.  310,  3r)  Law  J.  Exch,  201;  Grafton  v.  Cummlngs.  99  U.  S. 
100,  25  L.  Ed.  300;  Sherlinrne  v.  Sbaw.  1  N.  H.  157.  8  Am.  Dec.  47: 
:srcElroy  v.  Scery.  01  Md.  389.  48  Am.  Rop.  110;  Mentz  v.  Now- 
wltter,  122  N.  Y.  491,  25  N.  E.  1044.  11  L.  R.  A.  97,  19  Am.  St.  Rep. 
514. 

iT4Vandenbergb  v.  Spooner,  D.  R.  1  Exch.  316,  35  Law  J.  Exch. 
201;  Bailey  v.  Ogden.  3  .Johns.  (N.  Y.)  399,  3  Am.  Dec.  509;  Calkins 
V.  Falk.  1  Abb.  Dec.  (N.  Y.)  201  ;  Nlobols  v.  .Johnson,  10  Conn.  192; 
Sanborn  v.  Flagler,  9  Allen  (Mass.)  474.  477;  Oglesby  Grocery  Co.  v. 
Manufacturing  Co..  112  Ga.  359.  37  S.  E.  372.  The  requirement  that 
the  writing  should  show  which  is  seller  and  which  buyer  has  been 
relaxed  in  some  cases,  where  parol  evidence — for  example,  proof  of 
the  occupation  of  the  parties — has  boon  admitted  to  raise  an  infer- 
ence on  tills  point.  Newell  v.  Radford,  T-.  R.  3  C.  P.  52,  37  Law  J. 
C.  P.  1;  Salmon  Falls  Mfg.  Co.  v.  Gixidard,  14  How.  (U.  S.^  440. 
14  Ij.  Ed.  493.  But  see  dissenting  opinion  of  Curtis,  J.,  in  the  latter 
case,  and  Grafton  v.  Cummings,  99  U.  S.  100,  111.  25  L.  Ed.  300; 
Mentz  V.  Newwitter.  supra. 

iTBCommins  v.  Scott,  L.  R.  20  Eq.  11;  Catling  v.  King.  5  Qi. 
Dlv.  GOO;  Bibb  v.  Allen.  149  U.  S.  481,  13  Sup.  Ct.  950.  37  I*  Ed. 
819;  Jones  v.  Dow.  142  Mass.  130.  7  N.  E.  839.  See.  also,  American 
Iron  &  Steel  Mfg.  Co.  v.  Steel  Co.  (C.  C.)  101  Fed.  200. 

iToTruoman  v.  Ix)der,  11  Adol.  &  E.  589;  Dykers  v.  Townsend, 
24  N.  Y.  57;   Sanborn  v.  Flagler,  9  Allen  (Mass.)  474.  477;  Gowen 


104  FORMATION   OF   THE   COXTRACT.  (Ch.  2 

true,  and  an  agent  so  contracting  cannot  show  by  parol  tliat  he 
did  not  intend  to  bind  himself,  since  this  would  be  to  contradict 
the  memorandum.^'" 

Same — Price. 

The  fourth  section  of  the  statute  requires  that  "the  agreement 
on  which  such  action  shall  be  brought,  or  some  memorandum 
or  note  thereof,  shall  be  in  writing,"  while  the  seventeenth  sec- 
tion simply  requires  that  "some  note  or  memorandum  in  writ- 
ing of  the  said  bargain  be  made."  A  fine  distinction  has  been 
drawn  in  some  cases  between  "agreement"  and  "bargain,"  the 
cases  which  maintain  the  distinction  holding  that  "agreement" 
includes  all  the  stipulations  of  the  contract,  and  that,  since  the 
promise  of  one  party  is  the  consideration  for  the  promise  of  the 
other,  the  memorandum  must  contain  both  promises. ^''^  But 
it  is  held,  even  by  the  courts  which  hold  that  a  memorandum  un- 
der the  fourth  section  must  state  the  consideration,  that  imder 
the  seventeenth  section  it  is  enough  if  the  memorandum  con- 
tain the  promise  or  undertaking  of  the  party  to  be  charged,  and 
that  it  need  make  no  express  reference  to  the  promise  of  the 
other  party.^^^  And  this  rule  is  applied  even  where  the  mem- 
orandum is  in  the  form  of  a  mere  offer,  the  acceptance  of  which 

V.  Klous,  101  Mass.  449;  Briggs  v.  Miinchon,  56  Mo.  467;  Kingsley 
V.  Siebrecht,  92  Me.  23,  42  Atl.  249.  69  Am.  St.  Rep.  486;  Brodliead 
V.  Eeinbald,  200  Pa.  618,  50  Atl.  229,  86  Am.  St.  Rep.  735;  White 
V.  Manufacturing  Co.,  179  Mass.  427,  60  N.  E.  791;  Tobin  v.  Larkin, 
183  Mass.  389,  67  N.  E.  340 ;  Tiffany,  Ag.  233. 

177  Higgins  V.  Senior,  8  Mees.  &  W.  834.  See.  also,  Nash  v.  Towue, 
5  Wall.  (U.  S.)  689,  18  L.  Ed.  527;  Chandler  v.  Coe,  54  N.  H.  561; 
Coleman  v.  Bank,  53  N.  Y.  388. 

ITS  The  leading  case  holding  that  under  the  fourth  section  the 
memorandum  must  state  the  consideration  is  Wain  v.  Warlters,  5 
East,  10,  2  Smith,  Lead.  Cas.  (Sth  Ed.)  251.  Many  states  have  re- 
fused to  follow  it  See  Packard  v.  Richardson,  17  Mass.  122,  9 
Am.  Dec.  123,  the  leading  case  against  the  rule  there  decided.  Benj. 
Sales  (Corbin's  6th  Am.  Ed.)  §  232,  and  note;  Id.  §  248.  Cf.  Hayes 
V.  Jackson,  159  Mass.  451,  34  N.  E.  683. 

179  Egerton  v.  Mathews,  6  East,  307;  Sari  v.  Bourdillon,  1  C.  B. 
(N.  S.)  188;  Smith  v.  Ide,  3  Yt.  290;  Williams  v.  Robinson,  73  Me. 
186,  40  Am.  Rep.  352;  Kerr,  Dig.  Sale,  §  IS;  Langd.  Cas.  Sales,  1032. 
In  some  states  there  is  an  express  provision  either  that  the  con- 
sideration must,  or  that  it  need  not,  be  stated.  See  Browne,  St. 
Frauds,  §§  376,  377. 


lj§  34  36)  THK  NOTK  ou  memorandum.  10." 

is  verbal/*"  though  it  is  diftkult  to  comprehend  how  a  writing 
;in  be  called  a  "memorandum"  of  a  bargain  when  the  bargain 
was  not  yet  made  at  the  time  the  writing  was  signed.'*'  But 
the  price  constitutes  a  material  part  of  the  bargain,  and  must 
be  stated ;  '*-  though  if  the  price  be  not  agreed  upon,  but  is  im- 
plied, a  memorandum  which  states  no  price  is  sufficient. '** 

Same — Subject-Matter  and  Oilier  Terms. 

The  memorandum  must  designate  the  goods  sold,"*  and  all 
the  other  terms  and  conditions  of  the  contract,  so  far  as  to  en- 


180  Warner  v.  Wllllngton,  3  Drew,  523.  25  Law  J.  Cb.  GG2;  Reuss 
V.  Plcksley,  L.  R.  1  Exch.  342,  .']5  Law  J.  Kxcb.  218;  Sniil.orn  v. 
Flagler.  9  Allen  (Mass.)  474;  Justice  v.  Lang,  42  N.  Y.  41>3.  1  Am. 
Rep.  57G;  Farwell  v.  Ix)wther,  18  111.  252;  Gradle  v.  Warner,  140 
111.  123,  29  N.  E.  1118;  Kessler  v.  Smitli.  42  Minn.  494.  44  N.  W.  794: 
Lydig  V.  Branian,  177  Mass.  212,  5S  \.  K.  i;90;  Bristol  v.  Mento,  79 
.\pp.  Div.  G7,  80  N.  Y.  Sui»p.  .".2. 

181  See  Watts  v.  Ainsworth,  1  Hurl.  &  C.  83,  31  Law  J.  Exch.  44H 
I>er  Braniwell,  B. ;  r>anks  v.  Manufacturing  Co.  (C.  C.)  20  Fed.  0G7. 

Where  tlie  statute  requires  the  contract  to  be  in  writint;.  an  oral  nc- 
ceptance  is  not  sufficient  Kingman  v.  Davis,  G3  Neb.  578,  SS  N.  W. 
777;  American  Oak  Leather  Co.  v.  Porter.  94  Iowa,  117.  02  N.  W.  058. 

182  Elmore  v.  Kingscote,  5  Barn.  &  C.  583;  Acebal  v.  Levy.  10  Ring. 
376;  Goodman  v.  Griffiths,  1  Hurl.  &  N.  574,  26  Law  J.  Exch.  145; 
Ide  v.  Stanton,  15  Vt.  685,  40  Am.  Dec.  098;  Asbcroft  v.  Biitlorwortb. 
130  Mass.  511:  James  v.  Muir,  3:i  Mich.  223;  Stone  v.  Browning,  08 
N.  Y.  598;  Phelps  v.  Stillings,  60  N.  H.  505;  Hanson  v.  Marsh.  40 
Minn.  1,  40  N.  W.  841  ;  Peoria  Grape  Sugar  Co,  v.  Babco.k  Co.  (C. 
C.)  07  Fed.  892;  Rcid  v.  Glass  Co..  85  Fed.  193,  29  C.  C.  A.  110.  Con- 
tra, O'Neil  V.  Grain.  07  Mo.  2."0.  If  the  jtrlce  is  to  be  determined  In 
a  manner  agreed  upon,  a  memorandum  stating  the  agreement  on  this 
point  Is  sufficient  Atwood  v.  Cobb.  10  Pick.  (Mass.)  227.  26  Am.  Dec. 
657;  Argus  Co.  v.  City  of  Albany.  55  N.  Y.  495.  14  Am.  Rep.  290;  Nor- 
ton v.  Gale.  95  111.  5;;3,  35  Am.  Rep.  173;  Turner  v.  LorlUurd  Co., 
100  Ga.  04.5.  28  S.  E.  383,  62  Am.  St  Rep.  345;  Reid  v.  Glass  Co..  85 
Fed.  193,  29  C  C.  A.  110. 

183  Hoadly  v.  M'Laine,  10  Bing.  482;  Ashcroft  v.  Morrin.  4  Man. 
&  G.  450;    Benj.  Sales,  §  249. 

184  Thornton  v.  Kemjjster,  5  Taunt  780;  Waterman  v.  Mi'ii:«.  4 
Cush.  (Mass.)  497;  May  v.  Ward.  134  Mass.  127;  Johnson  v.  Del- 
bridge,  35  Mich.  430;  Peoria  Grape  Sugar  Co.  v.  Babcock  Co.  (0.  C.) 
67  Fed.  892  (quantity) ;  American  Iron  &  Steel  Co.  v.  Mfg.  Steel  Co. 
(C.  C.)  101  Fed.  200. 

Where  a  contract  to  sell  scrap  Iron  obligates  the  buyer  to  purchase 
all  the  seller's  iron  which  he  might  desire  to  sell,  the  seller  having 


106  FORMATION  OF  THE   CONTRACT.  (Ch.  2 

able  the  court  to  ascertain  what  they  were.^^'  But  parol  evi- 
dence is  admissible,  as  in  the  case  of  other  writings,  to  identify 
the  subject-matter,^^^  to  show  the  situation  of  the  parties  and 
the  circumstances,  and  to  explain  the  meaning  of  words  and 
latent  ambiguities.^®'' 

the  privilege  to  indicate  wlaat  he  desired  to  sell,  the  contract  con- 
tained a  sufficient  description  of  the  iron  sold  to  satisfy  the  statute 
of  frauds.  Burgess  Sulphite  Fibre  Co.  v.  Broomfield,  180  Mass.  283, 
62  N.  E.  367. 

18  5  McLean  v.  Nicoll,  7  Jur.  (N.  S.)  999;  Pitts  v.  Beckett,  13  Mees. 
&  W.  743;  Archer  v.  Baynes,  5  Exch.  625;  Coddington  v.  Goddard, 
16  Gray  (:^Iass.)  436,  442 ;  Riley  v.  Famsworth,  116  Mass.  223  (a  mem- 
orandum containing  a  clause  that  the  vendor  shall  "fulfill  the  condi- 
tions of  sale,"  but  not  setting  forth  the  conditions,  is  defective) ;  Call- 
anan  v.  Chapin,  158  Mass.  113,  32  N.  E.  941 ;  Williams  v.  Robinson, 
78  Me.  186,  40  Am.  Rep.  352 ;  Stone  v.  Browning,  68  N.  Y.  598 ;  John- 
son V.  Buck,  35  N.  J.  Law,  338,  343,  10  Am.  Rep.  243 ;  James  v.  Muir, 
33  Mich.  223 ;  Norris  v.  Blair,  39  Ind.  90,  10  Am.  Rep.  135 ;  Reid  v. 
Kentworthy,  25  Kan.  701 ;  Redus  v.  Holcomb  (Miss.)  27  South.  524 ; 
Fisher  v.  ^Sjidrews,  94  Md.  46,  50  Atl.  407;  J.  T.  Stewart  &  Son  v. 
Cook,  118  Ga,  541,  45  S.  E.  398.  Terms  of  payment :  Davis  v.  Shields, 
26  Wend.  (N.  Y.)  341 ;  Wright  v.  Weeks,  25  N.  Y.  153 ;  O'Dounell  v. 
Leeman,  43  Me.  158,  09  Ain.  Dec.  54.  Time  of  delivery,  if  agreed: 
Kriete  v.  Myer,  61  Md.  558;  Smith  v.  Shell,  82  Mo.  215,  52  Am.  Rep. 
365 ;  Hawkins  v.  Chase,  19  Pick.  (Mass.)  502  (otherwise,  if  not  agreed, 
since  it  will  be  presumed  to  be  on  demand). 

iseMacdonald  v.  Longbottom,  28  Law  J.  Q.  B.  293,  on  appeal  1 
El.  &  El.  977,  29  Law  J.  Q.  B.  256  ("your  wool");  Barry  v.  Coombe, 
1  Pet.  (U.  S.)  640,  7  L.  Ed.  295;  Tallman  v.  Franklin,  14  N.  Y.  584; 
New  England  Dressed  Meat  &  Wool  Co.  v.  Worsted  Co.,  165  Mass. 
328,  43  N.  E.  112,  52  Am.  St.  Rep,  516. 

187  Salmon  Falls  Mfg.  Co.  v.  Goddard,  14  How.  (U.  S.)  446,  14 
L.  Ed.  493;  Brewer  v.  Horst-Lachmund  Co.,  127  Cal.  643,  60  Pac. 
418,  50  L.  R.  A.  240;  Benj.  Sales,  §§  213-215.  In  Doherty  v.  Hill, 
144  Mass.  465,  11  N.  E.  583,  it  was  held  that,  under  the  fourth 
section,  a  memorandum  describing  equally  two  pieces  of  real  estate 
could  not  be  supplemented  by  introducing  a  letter  from  the  owner 
to  the  agent,  showing  which  estate  he  had  authority  to  sell,  nor  by 
evidence  that  the  purchaser  only  knew  of  one  estate  owned  by  the 
seller.  See,  also,  Jones  v.  Tye,  93  Ky.  390,  20  S.  W.  388.  In  Mead 
V.  Parker,  115  Mass.  413,  15  Am.  Rep.  110,  in  a  memorandum  dated 
at  Boston,  "a  house  on  Church  street"  was  held  a  sufficient  descrip- 
tion. But  see  Mellon  v.  Davison,  123  Pa.  298,  16  Atl.  431;  Andrew  v. 
Babcock.  63  Conn.  109,  26  Atl.  715;  Fortesque  v.  Crawford,  105  N.  C. 
29,  10  S.  E.  910.  Cf.  Lowe  v.  Harris,  112  N.  C.  472,  17  S.  E.  539,  22 
L.  R.  A.  379.     There  are  few  cases  involving  the  description  xmder 


§§34-36)  THK    NOTK    OK    MEMORANDUM.  KiT 

Parol  Eindcnce  to  Sliozc  That  the  Writing  :  ■  ' 

Memorandum. 

Since  the  note  or  nicinoranduin  implies  the  cxiaitnce  of  a 
parol  contract,  it  may  be  shown,  for  the  purpose  of  proving  the 
insufticicncy  of  the  memorandum,  that  it  is  not  the  record  of 
any  parol  contract;  either  that  no  contract  in  fact  existed,'" 
or  that  the  actual  contract  was  difFcrcnt  from  that  evidenced  by 
the  memorandum — for  exanii)le,  that  it  omitted  a  material 
term.'*"  As  was  said  by  Lord  Selborne,  the  statute  of  frauds 
"is  a  weapon  of  defense,  and  not  offense,  and  does  not  make 
any  signed  instrument  a  valid  contract  by  reason  of  the  sig- 
nature, if  it  is  not  such  according  to  the  good  faith  and  real 
intention  of  the  parties."  '*" 

Parol  Gfidence  as  to  Subsequent  Agreement  to  Modify  Orig- 
inal Contract. 

At  common  law  a  written  contract,  not  under  seal,  may  be 
waived,  annulled,  changed,  or  qualified  by  means  of  a  subse- 
quent parol  contract,  written  or  unwritten.  But  this  rule  is  not 
applicable  to  a  contract  which  has  been  satisfied  by  a  statutory 
note  or  memorandum.  If  the  original  contract  be  thus  satis- 
fied, a  subsequent  contract,  not  evidenced  by  a  sufficient  note  or 
memorandum,  to  modify  the  original  contract,  is  invalid.'" 

the  seventeeutb  sectlou,  and  those  under  the  fourth  section  are  cou- 
fllctiug.  See  Wood.  St  I'Yaud;^,  §  353;  Wllllstou,  Cas.  Sales,  2d  od.. 
p.  D79,  note. 

188  llussey  V.  Horne-Payne,  4  App.  Cas.  315,  per  Lord  Cairns,  at 
page  320. 

180  Pitts  V.  Beckett,  13  Mees.  &  W.  743  (that  the  wool  sold  should 
be  dry);  McMullen  v.  Helbcrg,  4  L.  R.  Ir.  i>4.  G  L.  K.  Ir.  4i^\  (that 
the  sale  was  by  sample);  ilcLeau  v.  Nicoll,  7  Jur.  (N.  S.)  WJ  (that 
glass  should  be  of  best  quality);  Peltier  v.  Collins,  3  Wend.  (N.  Y.) 
4ot),  20  Am.  Dec.  711  (warranty);  Boardraan  v.  Spooner,  13  Allen 
(Mass.)  353,  90  Am.  Dec.  190  (that  the  goods  are  to  be  subject  to 
approval);  Remicli  v.  Sandford,  118  Mass.  102  (that  sale  was  by 
sample).  See,  also,  .Tenuess  v.  Iron  Co..  53  Me.  20;  I.ang  v.  Henry, 
54  N.  H.  57;  Frank  v.  Miller,  38  Md.  450;  I.ee  v.  Hills,  GO  Ind.  474; 
Turner  v.  Ix>rillard  Co.,  100  Ga.  045,  28  S.  E.  383,  02  Am.  St  Rep. 
345;  Fisher  v.  Andrews,  94  Md.  40,  50  Atl.  407.  .^nd  see  note  185, 
ante. 

loo  Hussey  v.  Horne-Payne,  4  .\pp.  Cas.  311,  323. 

10  1  Stead  v.  Dnwber,  10  Adol.  &  E.  57,  overruling  Cuflf  v.  Penn,  1 
Maule  &  S.  21;    Marshall  v.  Lynu,  0  Mecs.  &  W.  109;    Swniu  v.  Sea- 


108  FORMATION  OF  THE  CONTRACT.  (Cll.  2 

The  subsequent  contract  being  invalid,  the  original  contract 
may  be  enforced. ^^^  But  whether  parol  evidence  is  admissible 
to  prove  a  subsequent  contract  for  a  waiver  or  abandonment  of 
the  entire  contract  is  an  open  question. ^^^  Parol  evidence  is 
admissible,  however,  to  prove  substantial  performance  when  the 
performance  is  completed  and  accepted,  and  such  performance 
is  a  defense  by  way  of  accord  and  satisfaction.^^* 

Separate  Papers. 

It  is  immaterial  whether  the  note  or  memorandum  be  written 
at  one  time,  or  at  different  times,  and  it  may  consist  of  any 
number  of  letters,  telegrams,  or  other  pieces  of  paper.  If  the 
connection  between  the  papers  be  physical,  it  is  enough  if  they 
were  attached  at  the  time  of  signature,  and  this  may  be  shown 

mens,  9  Wall.  (U.  S.)  254,  269,  19  L.  Ed.  554;  Ladd  v.  King,  1  R. 
I.  224,  51  Am.  Dec.  624;  Dana  v.  Hancock,  30  Vt  616;  Blood  v. 
Goodrich,  9  Wend.  (N.  Y.)  68,  24  Am.  Dec.  121;  Hill  v.  Blake,  97 
N.  Y.  216;  Carpenter  v.  Galloway,  73  Ind.  418;  Heisley  v.  Swau- 
strom,  40  Minn.  196,  41  N.  W.  1029;  Bm-ns  v.  Real  Estate  Co.,  52 
Minn.  31,  53  N.  W.  1017;  Reid  v.  Glass  Co.,  85  Fed.  193,  29  C.  C.  A. 
110;  Lawyer  v.  Post,  109  Fed.  512,  47  C.  C.  A.  491;  Walter  v.  Bloede 
Co.,  94  Md.  SO,  50  Atl.  433;  Warren  v.  Manufacturing  Co.,  161  Mo. 
112,  61  S.  W.  644.  Cf.  Cummings  v.  Arnold,  3  Mete.  (Mass.)  486,  37 
Am.  Dec.  155;  Stearns  v.  Hall,  9  Gush.  (Mass.)  31;  Whittier  v. 
Dana,  10  Allen  (Mass.)  326;  Negley  v.  Jeffers,  28  Ohio  St  90.  See, 
also,  Richardson  v.  Cooper,  25  Me.  450. 

192  Moore  v.  Campbell,  10  Exch.  323,  23  Law  J.  Elxch.  310;  Noble 
V.  Ward,  L.  R.  1  Exch.  117,  35  Law  J.  E&:ch.  81. 

A  voluntary  forbearance  by  one  party  at  the  request  of  the  other 
does  not  prevent  the  former  from  determining  his  forbearance  and 
reverting  to  his  rights  imder  the  contract;  and  parol  evidence  of 
such  forbearance  may  be  given,  the  effect  of  such  evidence  being, 
where  the  request  for  forbearance  came  from  the  defendant,  to  es- 
top him  from  averring  that  the  plaintiff  was  not  ready  and  willing 
to  perform  according  to  the  contract.  Hickman  v.  Haynes,  L.  R.  10 
C.  P.  598;  Benj.  Sales,  §  217a.  See,  also,  Smiley  v.  Barker,  83  Fed. 
684,  28  0.  C.  A.  9. 

193  Goss  v.  Lord  Nugent,  5  Barn.  &  Adol.  65,  per  Denman,  C.  J.; 
Harvey  v.  Graham,  5  Adol.  &  E.  61,  73.  The  aflBrmative  was  held  in 
Buel  V.  Miller,  4  N.  H.  196. 

19  i  Moore  v.  Campbell,  10  Exch.  323,  per  Parke,  B.;  Leather  Cloth 
Co.  V.  Hieronimus,  L.  R.  10  Q.  B.  140;  Long  v.  Hartwell.  34  N.  J. 
Law,  116,  127;  Ladd  v.  King,  1  R.  I.  224.  231.  51  Am.  Dec.  624; 
Swain  v.  Seamens,  9  Wall.  (U.  S.)  254,  19  L.  Ed.  554;  Langd.  Cas. 
Sales.  1034. 


§§  34-30)  TllK    NOTE    OK    MEMOHANDLM.  W.\ 

by  parol. ^°°  If  they  were  never  attached,  the  signed  paper 
must  make  such  a  reference  to  the  other  as  to  enahle  the  court 
to  construe  the  uliole  together,  as  containing  all  the  terms  of  ihc 
bargain.'""  If  they  are  not  connected  by  attachment  or  refer- 
ence, they  cannot  be  connected  by  parol. "*^  Parol  evidence  is, 
however,  admissible  to  explain  an  ambiguous  reference,  and  to 
identify   the   document  to   which  the   .signed   paper   refers."* 

103  Koiiwortliy  v.  Scholield,  2  Barn.  &  C.  945.  per  Ilolroyd,  J. 

108  SiUiiitlcrson  v.  Jackson,  2  lios.  &  T.  2;i8;  Jackson  v.  l^)\ve.  1 
Hing.  9;  Salmon  Falls  Mfg.  Co.  v.  Goddard.  20  CurL  iK-c.  370.  14 
IIow.  (U.  S.)  44t).  14  L.  Ed.  403;  Newton  v.  Bronsun.  13  N.  Y.  587. 
(•.7  Am.  Dec.  80;  Fisher  v.  Kuhn,  o4  Miss.  480;  Olson  v.  Sliarpless, 
r.3  Minn.  91.  55  N.  W.  125;  Uyan  v.  U.  S..  130  U.  S.  US.  10  Sup.  Ct 
013.  34  L.  Kd.  447:  I'.ayiie  v.  Wiggins,  139  U.  S.  210.  11  Sup.  CL  521. 
35  L.  Ed,  144;  Third  Nat.  Bank  v.  Steel.  129  Mich.  434.  88  N.  \V. 
1050.  64  L.  li.  A.  119;  Devine  v.  Wanier,  70  Conn.  220.  50  Atl.  502; 
Cobb  V.  Lumber  Co..  57  W.  Va.  49.  49  S.  E.  1005.  110  .Vm.  St.  Rep. 
734.  But  if  all  the  separate  papers  are  signed,  reference  in  tlie  one 
to  the  other  need  uot  be  made,  if  by  inspection  and  comparison  it 
appears  that  they  severally  form  part  of  the  same  transaction. 
Tliayer  v.  Luce,  22  Ohio  St,  02,  The  paper  referred  to  need  not  be 
in  e.xistenee  when  the  signed  paper  is  executed.  Freeland  v.  Ultz. 
154  Mass.  257.  28  N.  E.  220,  12  L.  R.  A.  501,  20  Am.  SL  Uep,  244, 

lOT  iiinde  v,  Whitehouse.  7  East,  558;  Kenworthy  v.  Scholicld.  2 
r.arn.  &  C.  945;  Pierce  v.  Corf,  L.  R.  9  Q,  B.  210;  Boydell  v.  I>rum- 
inond,  11  East,  142;  Jacob  v.  Kirk,  2  Mood.  &  R.  221;  Johnson  v. 
lUick.  35  N.  J.  Law,  3.38,  10  Am.  Rep,  243;  O'Donnell  v.  Leemaii. 
13  Me.  158,  09  Am.  Dee.  54;  Morton  v.  Dean.  13  Mete.  (Mass.)  .3^5; 
Coe  V.  Tough,  116  N.  Y.  273.  22  N.  E.  55^);  Frank  v.  Miller.  38  .Md. 
t.'O;  Brown  v.  Whipple,  58  N.  H.  220;  North  v.  Mendel.  73  Ca.  400. 
'4  Am.  Rep.  870;  Turner  v.  Lorillard  Co.,  100  Ga,  (45.  28  S.  E.  383. 
i;2  Am.  St.  Rei).  345;  Swallow  v.  Strong,  S3  Minn.  87.  85  N.  W.  942. 
Rut  In  Lerned  v.  Wannemacher,  9  Allen  (Mass.)  412.  it  was  held 
that,  when  a  memorandum  is  drawn  up  in  duplicate,  one  signed  by 
the  seller  and  the  other  by  the  buyer,  they  may  be  read  together  ns  If 
-igiiod  by  both.  See,  also,  Rhoades  v,  Castner,  12  Allen  (Ma.s-s.)  130. 
In  Ridgway  v,  Ingram.  50  Ind,  145,  19  Am,  Rep.  700,  where  the  mem- 
nrandum  was  indorsed  on  an  order  of  sale,  but.  without  referring  to 
It,  tlie  court  held  that  there  was  no  connection.  Followed  In  Wils- 
tach  V.  Heyd.  122  Ind,  574.  23  N,  E,  903. 

108  Ridgway  V.  Wharton.  (!  H.  L.  Cas.  238  (Instructions);  Baumnnn 
V.  James,  3  Cli.  App.  508  ("terms  agreed  upon");  I>onp  v.  Miliar.  I 
C.  P.  Div.  450  ("purchase");  Cave  v.  Hastings.  7  Q.  B.  Dlv.  125  Com- 
nrrangement");  Beckwith  v.  Talbot.  f>5  U.  S.  289.  24  L.  VA.  400  (but 
see  Grafton  v.  Cummings.  99  U.  S.  100.  112.  25  L.  Ed,  300);  White  v, 
P.recn,  1(X>  Ala.  150,  10  South,  59,  32  L.  R.  A.  127;    Strouse  v.  Eltlng. 


110  FORMATION  OP  THE  CONTRACT.  (Ch.  2 

Papers  connected  by  reference  must  be  consistent,  for  otherwise 
it  would  be  impossible  to  determine  what  the  bargain  was  with- 
out parol  evidence  to  show  which  stated  it  correctly.^ ^^  The 
memorandum  may  be  in  pencil.^"'' 


SAME— SIGNATURE  OF  THE  PARTY. 

37.  Only   the   signature   of   tlie   party   against  wrhoni   the   con- 

tract is  sought  to  be  enforced  is  required. 

38.  The   signature  may  be  by  mark  or  initials,   and  may  be 

ivritten  in  pencil.  Unless  the  statute  requires  the 
name  to  be  "subscribed,"  the  signature  may  be  print- 
ed, and  may  be  at  the  beginning  or  in  the  body  of  the 
document. 

Although  the  seventeenth  section  requires  the  writing  to  be 
signed  by  the  "parties"  ^°^  to  be  charged,  the  memorandum 
is  sufficient  if  signed  only  by  the  party  against  whom  the  con- 
tract is  sought  to  be  enforced. ^°^  It  follows  that  the  contract 
is  good  or  not  at  the  option  of  the  party  who  has  not  signed. 

110  Ala.  132,  20  South.  123;  Kingsley  v.  Siebrecht,  92  Me.  23,  42 
All.  249,  69  Am.  St.  Rep.  486;  Brewer  v.  Horst-Lachmund  Co.,  127 
Cal.  643,  60  Pac.  418,  50  L.  R.  A.  240.  An  extreme  application  of 
the  rule  admitting  parol  evidence  was  made  in  Louisville  Asphalt 
Varnish  Co.  v.  Lorick,  29  S.  C.  533,  8  S.  E.  8,  2  L.  R.  A.  212.  The 
late  case  of  Oliver  v.  Hunting,  44  Ch.  Div.  205,  seems  irreconcilable 
with  the  earlier  decisions. 

A  letter  beginning  "Dear  sir,"  and  the  addressed  envelope  in 
which  it  came,  may  be  read  together.  Pearce  v.  Gardner  (1897)  1  Q. 
B.   688. 

198  Smith  V.  Surman,  9  Barn.  &  C.  561;  Thornton  v.  Kempster,  5 
Taimt.  786.  Calkins  v.  Falk,  1  Abb.  Dec.  (N.  Y.)  291;  Phippen  v. 
Hyland,  19  U.  C.  C.  P.  416. 

200  Clason's  Ex'rs  v.  Bailey,  14  Johns.  (N.  Y.)  484;  Merritt  v.  Cla- 
son,  12  .Johns.  (X.  Y.)  102,  7  Am.  Dec.  280. 

2  01  The  language  of  the  fourth  section  is  "by  the  party  to  be 
charged." 

202  Allen  V.  Bennet,  3  Taunt.  169;  Thornton  v.  Kempster,  5  Taunt. 
7S6;  Clason's  Ex'rs  v.  Bailey,  14  Johns.  (N.  Y.)  484;  McCrea  v,  Pur- 
mort,  16  Wend.  (N.  Y.)  460,  30  Am.  Dec.  103;  Justice  v.  Lang,  42 
N.  Y.  493,  1  Am.  Rep.  576;  Old  Colony  R.  Corp.  v.  Evans,  6  Gray 
(Mass.)  25,  31,  66  Am.  Dec.  394;  Williams  v.  Robinson,  73  Me.  186, 
40  Am.  Rep.  352;   Hodges  v.  Kowing,  58  Conn.  12,  18  Atl.  979,  7  L. 


§i5  37-38)  THE    NOTK   OR    MEMORANDUM.  Ill 

The  signature  may  be  by  mark,'"'  though  not  by  more  de- 
scription,^"* or  may  be  by  initials,  if  they  arc  intended  as  a 
signature.^""  It  may  be  written  in  pencil;""  or  it  may  be 
printed,  provided  there  is  sufficient  evidence  of  the  adoption  of 
the  printed  name,  as  where  the  seller  fills  out  and  gives  the  buy- 
er a  bill  of  parcels,  with  the  name  of  the  seller  printed  there- 
on.-"'' Some  statutes  require  the  name  to  be  "subscribed,"  and 
under  them  the  signature  must  be  at  the  end.*""  Under  the 
original  enactment,  however,  and  generally  in  the  absence  of 
express  provisions  requiring  a  different  construction,  the  sig- 
nature is  good,  though  it  be  at  the  beginning  or  in  the  body  of 
the  document;  but,  if  the  name  is  put  in  an  unusual  place, 
it  is  a  question  of  fact  whether  it  was  so  written  for  the  purpose 
of  authenticating  the  document.*""    As  was  said  by  Lord  West- 

R.  A.  87;  Easton  v.  Montgomery,  90  Cal.  307,  27  Pac.  280,  25  Am.  St 
lit'p.  123;  Cunuiiigliam  v.  Williams,  43  Mo.  App.  G20.  See,  also, 
Keuss  V.  Picksley,  L.  R.  1  Excli.  342,  and  other  cases  cited  In  note 
ISO.  ante,  -which  hold  that  a  written  offer  accepted  by  parol  Is  a  suf- 
lielent  memorandum.  Contra:  Wilkinson  v.  lleavenrlch,  53  Mich. 
374,  2G  N.  W.  139,  55  Am.  Rep.  708. 

202  Baker  v.  Dening.  8  Adol.  &  E.  94  (under  fifth  section).  See,  al- 
so, Zacharie  v.  Franklin,  12  Pet.  (U.  S.)  151,  9  L.  Ed.  10.^^.. 

204  A  letter  by  a  mother  to  her  son,  bofjinninp,  "My  dear  Robert." 
and  ending,  "Your  affectionate  mother,"  with  a  full  direction  con- 
taining the  son's  name  and  address,  is  not  sutlioiently  sigm-d.  Selby 
V.  Selby,  3  Mer.  2. 

205  Sanborn  v.  Flagler,  9  Allen  (Mass.)  474;  Salmon  Falls  Mfg. 
Co.  V.  Goddard.  14  How.  (U.  S.)  44(;,  14  L.  Fa\.  493.  See  Palmer  v. 
Stephens,  1  Denio  (N.  Y.)  471;  Benj.  Sales,  §  257.  The  omission  of  a 
middle  name  is  immaterial.  Fessenden  v.  Mussey,  11  Cush.  (Mass.) 
127. 

^f'oMerritt  v.  Clason,  12  .Tohns.  (N.  Y.)  102,  7  Am.  Dec.  280;    Cla- 
■n's  Ex'rs  v.  Bailey,  14  .Tubus.  (N.  Y.)  484. 

207  Sannderson  v.  Jackson,  2  Bos.  &  P.  2.38;  Schneider  v.  Norrls, 
2  Maule  &  S.  2SG;  Drm-y  v.  Young.  58  Md.  540,  42  Am.  Rep.  3-13; 
Com.  V.  Ray,  3  Gray  (Mass.)  441,  447.  Otherwise  -where  the  statute 
requires  the  name  to  be  "subscribed."  Viele  v.  Osgood.  8  Barb. 
(X.  Y.)  1,30.  Signing  by  means  of  a  rubber  stamp  Is  sufTlclent.  In 
re  Deep  River  Nat.  Bank.  73  Conn.  341,  47  Atl.  075. 

208  Davis  V.  Shields.  2G  Wend.  (N.  Y.)  341;  James  v.  Patten,  6  N. 
Y.  9.  55  Am.  Dec.  37C,:  Doughty  v.  Brass  Co..  101  N.  Y.  tM4,  4  N. 
E.  747.  Contra:  California  Canneries  Co.  v.  Scatena,  117  Cal.  447, 
49  Pac.   4G2. 

200  Johnson  v.  Dodgsnn.  2  Moos.  &  W.  G.'3:    Durrfll   v.   Ev;in«.   1 


112  FORMATION  OF  THE   CONTRACT.  (Ch.  2 

bury,  in  a  case  -^°  under  the  fourth  section,  where  it  was  held 
that  the  name,  which  occurred  in  the  body  of  the  instrument,  re- 
ferred only  to  the  particular  part  in  which  it  was  found,  and 
was  insufficient :  ''The  signature  must  be  so  placed  as  to  show 
that  it  was  intended  to  relate  and  refer  to,  and  that  in  fact  it 
does  relate  and  refer  to,  every  part  of  the  instrument." 

SAME— AGENTS    AUTHORIZED    TO   SIGN. 

39.  The  authority  of  an  agent  to  sign  the  memorandum  may 

be  conferred  by  parol,  and  may  be  proved  by  subse- 
quent ratification. 

40.  The  agent  must  be  a  third  person,  and  not  one  of  the  par- 

ties; but  a  person  wlxo  acts  as  the  agent  of  one  party 
in  making  the  contract  may  act  as  the  agent  of  both 
parties  in  making  the  memorandum. 

The  statute  simply  provides  that  the  note  or  memorandum 
shall  be  signed  by  the  parties  to  be  charged,  "or  their  agents 
thereunto  lawfully  authorized."  The  manner  in  which  their 
agents  may  be  authorized  is  left  to  the  rules  of  the  common  law. 
Thus  the  agent  need  not  be  authorized  in  writing,  and  subse- 
quent ratification  is  equivalent  to  prior  appointment.^^^     And, 

Hurl.  &  C.  174,  31  Law  J.  Exch.  337;  Clason's  Ex'rs  v.  Bailey,  14 
Johns.  (N.  Y.)  484;  Hawkins  v.  Chase,  19  Picli.  (Mass.)  502;  Penni- 
man  v.  Hartshorn,  13  Mass.  87;  Coddington  v.  Goddard,  16  Gray 
(Mass.)  43G;  Batturs  v.  Sellers,  5  Har.  &  J.  (Md.)  117,  9  Am.  Dec. 
492;  Drury  v.  Young,  58  Md.  546,  42  Am.  Eep.  343;  Anderson  v. 
Harold,  10  Ohio,  400;  McConnell  v.  Brillhart,  17  111.  354,  65  Am. 
Dec.  661;  Tiugley  v.  Boom  Co.,  5  Wash.  644,  32  Pae.  737,  33  Pac. 
1055;  New  England  Dressed  Meat  &  Wool  Co.  v.  Worsted  Co., 
1G5  Mass.  328,  43  N.  E.  112,  52  Am.  St.  Rep.  516;  Anderson  v.  Man- 
ufacturing Co.,  30  Wash.  147,  70'  Pac.  247;  Ferguson  v.  Trovaten, 
94  Minn.  209,  102  N.  W.  373.  Defendants'  clerk  by  their  authority 
drew  up  a  letter  addressed  to  them,  containing  the  terms  on  which 
plaintiff  was  to  serve  them,  which  plaintiff  signed.  Held,  that  the 
letter  -n-as  a  sufficient  memorandum  to  bind  defendants.  Evans  v. 
Hoare  [1892]  1  Q.  B.  593.  See,  also.  Smith  v.  Howell,  11  N.  J.  Eq. 
349;  Adams  v.  Field,  21  Vt.  256;  John  Griffith's  Corp.  v.  Humber 
[1899]  2  Q.  B.  414. 

210  Caton  V.  Caton,  D.  R.  3  H.  L.  127. 

211  Maclean  v.  Dunn,  4  Bing.  722;  Soames  v.  Spencer,  1  Dowl.  & 
R.  32;    Hawkins  v.  Chase.  19  Pick.  (Mass.)  502,  505;   Batturs  v.  Sel- 


§§39-40)  THE    NOTK    OK    MEMOKANDIBI.  IH 

as  we  have  seen,  it  is  ininiaterial  whether  tlic  agent  sign  his 
own  name  or  that  of  his  principal. =^^  Authority  to  contract  im- 
pHes  authority  to  sign  the  nietnoraiKhun,  aii<l  the  nienioranduni 
may  be  made  subsequently  to  the  contract,  if  the  authority  has 
not  been  revoked." ^^ 

IVho  may  be  Agoit  to  Sign. 

The  agent  to  sign  must  be  a  third  person,  and  not  the  other 
party  to  the  contract.-^*  This  rule  does  not,  however,  exclude 
the  agent  of  the  seller  from  acting  as  the  agent  of  buyer,'" 
but  such  agency  must  be  clearly  proved.  For  example,  the  mere 
fact  that  the  seller's  salesman  signs  his  own  name  to  the  memo- 
randum at  the  request  of  the  buyer  is  not  proof  of  agency  to 
sign  the  buyer's  name.^^° 

The  auctioneer  at  a  public  sale  is  the  agent  of  the  buyer  as 
well  as  of  the  seller  to  sign  the  memorandum.* ^^     "The  tech- 

lers,  5  Har.  &  J.  (Md.)  117,  9  Am.  Dec.  4U2;  Yerby  v.  (Jrlssby,  0 
I^iigh  (Va.)  3S7;  Conaway  v.  Sweeney.  24  W.  Va.  VAl);  Koehl  v. 
Haumesser.  114  Ind.  .311,  15  N.  E.  34.">;  Wiener  v.  Whipple,  53  Wis. 
208,  302,  10  N.  W.  433.  40  Am.  Rep.  775. 

212  Ante,  p.  10;J.  See,  also,  Williains  v.  Bacon,  2  Gray  (Mass.) 
387;  Yerby  v.  Grigsby,  9  Leigh  (Va.)  387;  Conaway  v.  Sweeney,  24 
W.  Va.  049;  Hargrove  v.  Adcock,  111  N.  C.  IGG,  10  S.  E.  10. 

213  Williams  v.  Bacon,  2  Gray  (Mass.)  3S7,  per  Merrick,  J.;  Fann- 
er V.  Robinson,  cited  in  note  to  Ileyman  v.  Neale,  2  Camp.  337. 

2i«Sbarman  v.  Brandt,  I>.  R.  0  Q.  B.  720;  Wright  v.  Dannah.  2 
Camp.  203;  Farebrother  v.  Simmons,  5  Barn.  &  .\ld.  333;  Smith  v. 
Arnold,  5  Mason  (U.  S.)  414,  Fed.  Cas.  No.  13,0(M;  Bent  v.  Cobb.  9  Gray 
(Mass.)  397,  09  Am.  Dec.  205;  .Johnson  v.  Buck,  35  N.  J.  Law,  :;;«. 
342.  10  Am.  Rep.  243;  Tull  v.  David.  45  :Mo.  444,  100  Am.  Deo.  38.5. 
Cf.  Snyder  v.  Wolford,  33  Minn.  175,  22  N.  W.  2.54,  53  Am.  Rep.  22. 

21''  Dnrrell  v.  Evans.  30  Daw  .T.  Exch.  2.54,  0  Hurl.  &  N.  Cm-.  B.-nJ. 
Sales,  §§  267,  267a.  Where  plaintiffs'  traveling  salesman  called  on 
defendant,  and  was  aiitliorizod  by  him  to  transmit  to  his  principals 
an  offer  for  the  purchase  of  cotton,  a  letter  written  by  the  salesman 
to  plaintiffs,  transmitting  the  offer  so  made,  was  not  such  a  memoran- 
dum as  would  cliarge  defendant  under  the  statute  of  frauds;  tlie 
salesman  not  being  his  agent  in  tlie  transaction.  Wilson  v.  Mill 
Co.,  150  N.  Y.  314,  44  N.  E.  959,  55  Am.  St.  Rep.  080. 

210  Graham  v.  Musson,  5  Bing.  N.  C.  <X)3;  Graham  v.  Fretwell,  3 
Man.  &  G.  3G8;  Murphy  v.  Boese,  D.  R.  10  Exch.  120.  See.  also, 
Sewall  V.  Fitch,  8  Cow.'(N.  Y.)  215;  Ijams  v.  Hoffman.  1  Md.  423; 
Bamber  v.  Savage.  52  Wis.  110,  8  N.  W.  000,  38  Am.  Rep.  723. 

21T  Simon  v.  Metivier,  1  Wm.  Bl.  599;   Hinde  v.  Whlteliouse.  7  East, 

TiFF.SAi.Ks(2n  En.l— 8 


114  FORMATION   OF  THE   CONTRACT.  (Ch.  2 

nical  ground  is,"  as  was  said  by  Shaw,  C.  J.,  "that  the  pur- 
chaser, by  the  very  act  of  bidding,  connected  with  the  usage  and 
practice  of  auction  sales,  loudly  and  notoriously  calls  on  the 
auctioneer  or  his  clerk  to  put  down  his  name  as  the  bidder,  and 
thus  confers  on  the  auctioneer  or  his  clerk  authority  to  sign  his 
name,  and  this  is  the  whole  extent  of  his  authority."  ^^®  It  fol- 
lows that  the  auctioneer's  authority  to  sign  the  memorandum 
ends  with  the  sale,  and  that  a  memorandum  subsequently  signed 
is  invalid,^ ^^  and  that  he  is  not  the  agent  to  sign  for  the  buyer  at 
a  private  sale.^^°  Nor  can  the  auctioneer,  if  he  is  himself  the 
seller,  bind  the  buyer  by  signing  the  memorandum.-^ ^  The 
auctioneer's  clerk,  as  well  as  the  auctioneer  himself,  may  make 
the  memorandum,  provided,  at  least,  that  he  acts  openly  in  en- 
tering the  bids,  so  that  the  assent  of  the  bidder  may  be  im- 
plied."2 

558;  Morton  v.  Dean,  13  Mete.  (Mass.)  385;  McComb  v.  Wright,  4 
Johns,  Ch.  (N.  Y.)  659;  Harvey  v.  Stevens,  43  Vt.  653;  Johnson  v. 
Buck,  35  N.  J.  Law,  338,  10  Am.  Rep.  243;  Gill  v.  Hewett,  7  Bush 
(Ky.)  10;  Atkinson  v.  Washington  &  Jefferson  College,  54  W.  Va. 
32,  46  S.  B.  253;  Garth  v.  Davis,  120  Ky.  106,  85  S.  W.  692.  Cf. 
Dunham  v.  Hartman,  153  Mo.  625.  55  S.  W.  233,  77  Am.  St.  Rep.  741. 

218  Gill  v.  Bicknell,  2  Cush.  (Mass.)  355,  at  page  358.  See,  also, 
Emmersou  v.  Heelis,  2  Taunt.  38,  per  Sir  James  Mansfield.  The  in- 
ference of  agencj'  to  sign  for  the  bidders  may  be  rebutted.  Bartlett 
V.  Purnell,  4  Adol.  &  B.  792. 

Between  the  fall  of  the  hammer  and  the  making  of  the  memoran- 
dum, the  bidder  has  a  locus  poenitentise,  and  may  withdraw  his  bid. 
Pike  V.  Balch,  38  Me.  302,  61  Am.  Dec.  248;  Gwathney  v.  Cason,  74 
N.  C.  5,  21  Am.  Rep.  484;    Dunham  v.  Hartman,  supra. 

219  Horton  v.  McCarty,  53  Me.  394.  Cf.  Smith  v.  Arnold,  5  Mason 
(U.  S.)  414,  Fed.  Cas.  No.  13,004,  per  Story,  J.;  Bamber  v.  Savage, 
52  Wis.  110,  113,  8  N.  W.  609,  38  Am.  Rep.  723. 

The  vendor  is  bound,  though  the  auctioneer  does  not  sign  till  the 
next  day;  his  authority  not  having  been  revoked.  White  v.  Mfg. 
Co.,  179  Mass.  427,  60  N.  E.  791. 

220  Mews  V.  Carr,  1  Hurl.  &  N.  486,  26  Law  J.  Exch.  39.  Cf. 
Bartlett  v.  Purnell,  4  Adol.  &  E.  792. 

221  Farebrother  v.  Simmons,  5  Barn.  &  Aid.  333;  Bent  v.  Cobb,  9 
Gray  (Mass.)  397,  69  Am.  Dec.  295;  Johnson  v.  Buck,  35  N.  J.  Law, 
338,  342,  10  Am.  Rep.  243;  Tull  v.  David,  45  Mo.  444,  100  Am.  Dec. 
385. 

222  Bird  V.  Boulter,  4  Barn.  &  Adoi.  443;  Johnson  v.  Buck,  35  N. 
J.  Law,  338,  10  Am.  Rep.  243;  Cathcart  v.  Keirnaghan,  5  Strob.  (S. 
C.)  129;    Gill  v.  Bicknell,  2  Cush.  (Mass.)  355,  358;    Frost  v.  Hill.  3 


§§39-40)  TlIK    NOTK    OK    M  KMOltAN  DUM.  1 1 ."» 

The  signature  of  a  clerk  of  a  telegraph  company  to  a  dispatch, 
the  sending  of  which  is  authorized  by  either  party,  is  suffi- 
cient.-*^ An  agent  must  sign  as  such,  and  his  signature  as  a 
mere  witness  is  inoperative.--* 

Same — Broker. 

Brokers  are  as  a  rule  agents  for  both  parties.  When  so  act- 
ing, they  have  authority  to  do  all  that  is  necessary  to  bind  the 
bargain,  and  hence  may  sign  the  requisite  memorandum. *'* 
In  tliis  country  it  is  customary  for  the  broker  to  make  an  entry 
of  the  sale  in  a  book  kept  for  that  purpose,  and  such  an  entry, 
if  it  contains  the  terms  of  the  bargain,  is  a  sufficient  memoran- 
dum.--* nor  need  it  be  signed  by  the  broker.--^  A  note  con- 
taining the  terms  of  the  bargain,  and  delivered  by  him  to 
either  party,  is  also  sufficient, ^^^  though,  if  he  delivers  to  buyer 
and  seller  notes  which  materially  differ,  there  is  no  valid  mem- 
orandum.^-® 

In  England  it  is  customary  for  the  broker,  when  he  makes  a 
contract,  to  reduce  it  to  writing,  and  to  deliver  to  each  party 
a  copy  of  the  terms  as  reduced  to  writing  by  him.  and  also 

Wend.  (N.  Y.)  3SG;  Coate  v.  Terry.  24  U.  C.  C.  P.  ".71.  Hut  it  sceui.s 
that  there  is  no  general  custom  by  which  the  elork  as  such  Is  the 
bidder's  agent.  Pierce  v.  Corf,  L.  R.  9  Q.  B.  210.  21."..  per  Black- 
burn, J.  Cf.  Catheart  v.  Keirnaghan.  '>  Strob.  (S.  C.)  121).  per  Wald- 
law,  J. 

223  Godwin  v.  Francis,  L.  R.  5  C.  P.  2!>.j;  Smith  v.  Easton,  .".4  Md. 
138,  30  Am.  Kep.  .3.55;  Howley  v.  Wliipple,  4S  N.  H.  487;  Gray. 
Communication  Tel.  §§  138-142. 

224  Gosbell  V.  Archer,  2  Adol.  &  E.  GOO. 

225  Coddington  v.  Goddard.  10  Gray  (Mass.)  436. 

226  Coddington  v.  Goddard,  IG  (Jray  (Mass.)  4.3G;  Clason's  Ex'rs 
V.  Bailey,  14  .Johns.  (N.  Y.)  484;  Merritt  v.  Clasou.  12  Johns.  (N.  Y.) 
102.  7  Am.  Dec.  280;  Sale  v.  Darraph,  2  Ililt.  (N.  Y.)  184;  Williams 
V.  Woods,  16  Md.  220;    Bacon  v.  Eccles.  43  Wis.  227. 

227  Coddington  v.  Goddard.  IG  Gray  (Mass.)  4.30;  Morritt  v.  Ciason. 
12  Johns.  (N.  Y.)  102;   Clason's  Ex'rs  v.  Bailey.  14  Johns.  (N.  Y.)  484. 

228  Butler  V.  Thomson,  92  U.  S.  412,  23  L.  Ed.  684;  Bibb  v.  Allen. 
140  U.  S.  481,  13  Sup.  Ct.  OT.O.  37  L.  Ed.  810;  Ui'iniolc  v.  S:iiidf..rd. 
118  Mass.  102;  Newberry  v.  Wall.  84  N.  Y.  57G;  Weidmann  v.  Cham- 
pion (X.  Y.)  12  Daly.  522;    Bacon  v.  Eccles.  43  Wis.  227.      . 

2-ft  reltier  v.  Collins,  3  Wend.  (N.  Y.)  4."»9,  20  Am.  Dec.  711:  Suy- 
dam  V.  Clark.  2  Sandf.  (N.  Y.)  133;  Bacon  v.  Eccles,  43  Wis.  227; 
.Bibb  V.  Allen,  140  U.  S.  4S1,  13  Sup.  Ct.  950,  37  L.  Eil.  810.  per 
Jackson,  J. 


116  FORMATION   OF  THE   CONTRACT.  (Ch.  2 

to  enter  them  in  his  book  and  to  sign  the  entry.^^"  As  to  the 
effect  of  the  entry  in  the  broker's  book,  there  has  been  great 
difference  of  opinion.  According  to  Benjamin,  the  view  which 
seems  to  have  prevailed,  unHke  that  adopted  in  this  country,  and 
founded,  perhaps,  in  some  measure  on  the  fact  that  brokers  in 
London  were  until  recently  required  by  law  to  make  such  en- 
tries, is  that  the  entry  constitutes  the  contract  itself,  and  is  a 
contract  in  writing  ;^^^  but  this  at  the  present  day  is  doubt- 
ful.-^- Difficult  questions  have  arisen  in  England,  where  the 
sold  note  and  the  bought  note  differ  from  each  other  or  from 
the  entry  in  the  broker's  book.  The  result  of  the  English  deci- 
sions on  this  point,  which  owing  to  the  difference  in  the  law 
and  the  custom  are  of  comparatively  little  value  as  precedents 
in  this  country,  may  be  briefly  stated  as  follows  :^^^  A 
signed  entry  by  the  broker  of  the  terms  of  the  contract  is  a 
good  memorandum,  and  in  some  cases  ma}'  constitute  a  contract 
in  writing.^^*  Where  the  contract  has  been  reduced  to  writing, 
it  will  not  be  affected  by  subsequent  bought  and  sold  notes  con- 
taining other  terms,  unless  the  parties  have  agreed  to  make  a 
new  contract  in  accordance  with  the  terms  of  the  notes;  ^^°  but 


23oBerij.  Sales,  §  276. 

231  Heyman  v.  Neale,  2  Camp.  337,  per  Lord  Ellenborough;  Thorn- 
ton V.  Charles,  9  Mees.  &  W.  802,  per  Parke,  B.;  Sievewright  v. 
Archibald,  17  Q.  B.  115,  20  Law  J.  Q.  B.  529,  per  Lord  Campbell,  C. 
J.,  and  Patterson,  J.;  Thompson  v.  Gardiner,  1  C.  P.  Div.  777. 
Contra:  Thornton  v.  Meux.  Moody  &  M.  43,  per  Abbott,  C.  J.; 
Towneud  v.  Drakeford,  1  Car.  &  K.  20,  per  Denman,  C.  J. ;  Thorn- 
ton V.  Charles,  supra,  per  Lord  Abinger.  But  these  axithorities  are 
overruled  In  Sievewright  v.  Archibald,   supra.     Benj.   Sales,  §  294. 

232  Benj.  Sales  (5th  Eng.  Ed.)  287,  302.  See,  also,  Langdell,  Cas. 
Sales.  1035. 

2  33  The  statement,  in  substance,  is  taken  from  Benj.  Sales  (5th  Eng. 
Ed.)  302,  where  it  is  said  that  the  propositions  are  fairly  deducible 
from  the  authorities,  though  some  of  the  points  cannot  be  considered 
as  finally  settled.  The  authorities  cited  for  the  several  propositions 
are  found  in  notes  234-240,   infra. 

234  Thornton  v.  Charles,  9  :Mecs.  &  W.  802  (per  Parke,  B.);  Sieve- 
wright V.  Archibald,  supra  (per  Loi'd  Campbell  and  Patterson,  J.); 
Tuomp.son  v.  Gardiner,  1  C.  P.  Div.  777. 

235  Ileyworth  v.  Knight,  17  C.  B.  (X.  S.)  298;  Hawes  v.  Forster,  1 
Mood.  &  R.  368,  as  explaine<l  by  Parke,  B..  in  Thornton  v.  Charles, 
supra.    See,  also,  Lewis  v.  Brass.  3  Q.  B.  Div.  667. 


§  41)       KKKKCT  OF  NONrOMl'LlANCK  WITH  TllK  STATITK.         117 

c'vidciioo  of  an  intention  (u  liich  may  he  inferred  from  the  course 
of  dealing  between  the  parties  or  the  usage  of  trade)  to  con- 
tract only  by  means  of  two  notes,  is  relevant  to  show  that  what 
was  apparently  a  concluded  contract  was  not  intended  to  be 
-uch.-^"  The  bought  and  sold  notes  arc  deemed  to  constitute 
a  single  document.-^^  If  they  differ,  they  are  nullities,-'^'*  unless 
the  parties  have  assented  to  one  as  containing  the  terms  of  the 
contract,  in  which  case  the  difference  is  immaterial.^"  The 
bought  and  sold  notes  are  i)rima  facie  presumed  to  agree,  and, 
therefore,  if  one  is  put  in  evidence,  the  other  will  be  presumed 
to  correspond  with  it,  until  the  contrary  is  shown. ^*"' 


EFFECT    OF    NONCOMPLIANCE    W^ITH    THE    STATUTE. 

41.  Failure  to  comply  with  the  i>rovision8  of  the  statute  in 
resiject  to  acceptance  and  receipt,  earnest  or  part  pay- 
went,  or  note  or  nieuioranduni,  [probably]  does  not 
render  the  contract  void,  but  merely  prevents  its  en- 
forcement. 

The  seventeenth  section  declares  that,  if  there  be  no  accept- 
ance and  receipt,  no  earnest  or  part  payment,  and  no  note 
or  memorandum,  the  contract  shall  not  "be  allowed  to  be 
good."  ^*^  As  to  the  meaning  of  these  words,  there  are  in 
luigland  conflicting  dicta,  but  no  direct  decision;  some  judges 
assuming  that  the  words  of  the  seventeenth  section  (unlike 
those  of  the  fourth  section,  which  declares  that  "no  action  shall 

238  Hey  worth  v.  Knight,  supra;  Cowio  v.  Hoiufry,  o  Moore,  P.  C. 
•j:'.2;   Moore  v.  Campbell,  10  i:x<-h.  [',•2:1. 

-37  Sievewripht  v.  Arcliiltani.  sniira  ;  (Jraiit  v.  Fletcher.  ."  Rani.  & 
C.  «G;    (Jooin  v.  Allalo,  G  Ham.  VV:  C.   117. 

238  sieve\vii;;ht  V.  Archiltald.  supra;  (Jrant  v.  Fleteher.  supra; 
Oregson  v.  lUuk,  4  Q.  B.  747;  Caerleon  Tin  I'late  Co.  v.  Hughes.  05 
Law  J.  118,  IIU. 

230  Rowe  V.  Osborne,  1  Starkie.  140;  Moore  v.  Campbell,  10  Exch. 
323. 

-If'  Ilawes  V.  Forstor.  1  Mood.  &  U.  P.CS;  Parton  v.  Crofts,  IG  C.  B. 
(X.  K.)   11. 

2*1  Sales  Aet.  §  4  (U  substitutes  "enforceable  by  aetion."  So 
Sale  of  Goods  Aet.  §  4  (ll.  See  Taylor  v.  Railway  Co.  (1001)  1  Q.  B. 
774;    Benj.   Sales   (5th   Kng.   FA.)   30G. 


118  FORMATION   OF  THE   CONTRACT.  (Ch.  2 

be  brought")  ^*^  go  to  the  existence  of  the  contract,^*^  and 
others  that  there  is  no  difference  in  the  effect  of  the  two  sec- 
tions, and  that  the  provision  affects  only  the  remedy.^**  The 
latter  view  is  sustained  by  the  weight  of  opinion,-*^  and  is  cer- 
tainly in  conformity  with  the  construction  of  the  section  in 
other  respects, — for  example,  that,  if  one  party  has  signed  the 
contract,  it  may  be  enforced  against  him,  though  not  against 
the  other ;  that  a  mere  written  admission  at  any  time  before  ac- 
tion brought,  even  if  it  repudiates  the  contract,  is  sufficient,  be- 
cause it  is  evidence  of  the  existence  of  the  contract;  that  ac- 
ceptance and  receipt  or  part  payment  before  action  brought 
satisfies  the  section.  This  view  has  been  affirmed  by  decision  in 
Massachusetts,^"*^  though  the  opposite  view  has  been  taken  in 
Missouri.^*^  In  some  states,  however,  the  statute  declares  that 
the  contract  shall  be  "void." 

242  See  Clark,  Cont.  (2d  Ed.)  91. 

243  Leroux  v.  Brown,  12  C.  B.  809;  Laythoarp  v.  Bryant,  2  Bing. 
N.  C.  735,  747. 

244  Bailey  v.  Sweeting,  9  €.  B.  (N.  S.)  SAB,  30  Law  J.  C.  P.  150, 
per  Williams,  J.;  Maddison  v.  Alderson,  8  App.  Cas.  467,  488,  per 
Lord  Blackburn;  Britain  v.  Rossiter,  11  Q.  B.  Div.  123,  127,  per 
Brett,  L.  J. 

245  Pol.  Cont.  (2d  Am.  Ed.)  605;  Anson,  Cont.  67.  See  Browne,  St. 
Frauds,  c.  8;  9  Am.  Law  Rev.  434. 

2  46  Townsend  v.  Hargraves,  118  Mass.  325;  Amsinck  v.  Insur- 
ance Co.,  129  Mass.  185;  Wainer  v.  Insurance  Co.,  153  Mass.  335,  26 
N.  E.  877,  11  L.  R.  A.  598.  See,  also,  Jackson  v.  Stanfield,  137  Ind. 
592,  37  N.  E.  14,  2.3~L.  R.  A.  588;  Bird  v.  Munroe,  66  Me.  337,  22 
Am.  Rep.  571,  Cowell  v.  Insurance  Co.,  126  N.  C.  684,  36  S.  E.  1S4. 
Cf.  Stockdale  v.  Dunlop,  6  Mees.  &  W.  224. 

24  7  Hougbtaling  v.  Ball,  20  Mo.  563.  To  the  same  effect,  Green  v. 
Lewis,  26  U.  C.  Q.  B.  618. 


g  42)        EFFECT   OF    CONTRACT    IN    TASSINQ    PltOrEKTY.  11  (I 


CHAPTER   in. 

KFFECT  OF  THE  CONTKACT   l.N   I'ASSING   TIIH  PHOI'KICTY- 
SALE  OF  SPECIFIC  GOUDS. 

42.  In  CJoiior.il. 

43.  lUiles  for  Ascertaiuiiig  Intention. 

44.  Reservation   of   Rifjlit   of   Possession   or   Property. 

45.  Sale  on  Approval  or  Trial. 
4Gi.  Sale  or  lieturn. 


IN    GENERAL. 

42.  (1)  WTiere  there  is  a  contract  to  sell  specific  or  ascer- 
tained goods,  the  property  in  them  is  transferred  to 
the  buyer  at  such  time  as  the  parties  to  the  contract 
intend  it  to  be  transferred. 
(2)  For  the  purpose  of  ascertaining  the  intention  of  the 
parties,  regard  must  be  had  to  the  terms  of  the  con- 
tract, the  conduct  of  the  parties,  and  the  circumstan- 
ces of  the  case.i 

Executed  and  Executory  Sales. 

The  distinction  between  sales  and  contracts  to  sell  has  been 
already  pointed  out.^  As  we  have  seen,  in  a  sale  the  property 
passes  at  once,  and  in  a  contract  to  sell  it  does  not  pass  until 
the  contract  is  executed  by  the  seller.  In  the  one  case  the  seller 
sells ;  in  the  other,  he  promises  to  sell.  We  have  also  seen 
that  the  goods  which  are  the  subject  of  sale  must,  as  a  rule,  be 
owned  by  the  seller,  and  that  a  contract  to  sell  goods  not  yet  in 
existence  or  acquired  by  the  seller  can  only  take  effect  as  a  con- 
tract to  sell.^  Moreover,  even  if  the  goods  which  are  the  sub- 
ject of  sale  are  actually  owned  by  the  seller,  it  is  clear  that  if 
they  are  part  of  other  similar  goods,  as  10  sheep  out  of  a  flock 
of  20,  the  property  in  the  part  sold  cannot  pass  unless  the 
particular  goods  are  designated ;  in  other  words,  unless  the 
goods  are  specific*     But  provided  the  goods  are  specific,  the 

1  See  Sales  Act,  §  IS;   Sale  of  r.oo.ls  Act,  §  17. 

»  Ante,  p.  2.  »  Ante,  p.  40.  *  Post,  p.  147. 


120  EFFECT   OF  CONTRACT  IN   PASSING   PROPERTY.      (Ch.  3 

rule  holds  universally  that  the  property  in  them  will  pass  when- 
ever the  parties  so  intend.^  And,  therefore,  whether  a  sale  be 
executed  or  executory,  and,  if  originally  executory,  when  it 
will  become  executed,  depends  solely  upon  the  intention  of  the 
parties.  The  intention  is  to  be  gathered  from  the  terms  of  the 
contract,  the  conduct  of  the  parties,  and  the  circumstances  of 
the  case.®  If  the  intention  is  clear,  no  question  can  arise.  But 
because  the  parties  often  fail  to  make  clear  their  intention, 
frequently  for  lack  of  clearness  in  the  intention  itself,  the 
courts  have  established  certain  rules  of  interpretation  for  the 
purpose  of  determining  what  is  to  be  deemed  the  intention  of 
the  parties.'' 

Delivery. 

It  is  universally  held  that  delivery  of  the  goods  is  not  essen- 
tial to  the  transfer  of  the  property  to  the  buyer.^  In  some  juris- 
dictions, however,  an  exception  to  this  rule  is  recognized,  and 
it  is  held  that  delivery  is  necessary  to  transfer  the  property  as 
against  bona  fide  purchasers  from  the  seller  and  as  against  at- 
taching creditors  without  notice  of  the  prior  sale.®  This  doc- 
trine is  to  be  distinguished  from  the  doctrine  that  retention  of 
possession  by  the  seller  is  a  fraud  upon  the  seller's  creditors  and 
that  in  such  case  the  sale  can  be  avoided  by  them.^°    The  pres- 

0  Seath  v.  Moore,  11  App.  Cas.  350,  370,  3S0;  Shepherd  v.  Harrison, 
L.  R.  5  H.  L.  116,  127;  Hatch  v.  Oil  Co.,  100  U.  S.  124,  130,  25  L.  Ed. 
554;  Elgee  Cotton  Oases,  22  Wall.  (U.  S.)  ISO,  187,  22  L.  Ed.  S(>J; 
Merchants'  Exch.  Bank  v.  McGraw,  8  C.  C.  A.  420,  59  Fed.  972;  Terry 
V.  Wheeler,  25  N.  Y.  520,  525;  Callaghan  v.  Myers,  89  111.  5C6,  570; 
Winslow  V.  Leonard,  24  Pa.  14,  62  Am.  Dec.  354 ;  Kent  Iron  Sc  Hard- 
ware Co.  V.  Norbeck,  150  Pa.  559,  24  Atl.  737;  Lingham  v.  Eggleston, 
27  Mich.  324;  Hovey  v.  Gow,  81  Mich.  314,  45  N,  W.  985;  Kneeland 
V.  Reinier,  2  Kan.  App.  451,  43  Pac.  95 ;  O'Farrel  v.  McClure,  5  Kan. 
App.  880,  47  Pac.  160;  State  v.  Wharton,  117  Wis.  558,  94  N.  W. 
359;   Blackb.   Sales,   123;   Benj.    Sales,   §  309. 

6  Byles  V.  Colier,  54  Mich.  1,  19  N.  W.  565;  Hood  v.  Bloch,  29  W. 
Va.  244,  11  S.  E.  910;  Day  v.  Gravel,  72  Minn.  1.59,  75  N.  W.  1;  Pacific 
Lounge  &  Mattress  Co.  v.  Hudebeck,  15  Wash.  336,  46  Pac.  392;  Wad- 
hams  &  Co.  V.  Balfour,  32  Or.  313,  51  Pac.  642;  Towne  v.  Davis,  60 
N.  H.  396,  22  Atl.  450;  Branigan  v.  Hendrickson,  17  Ind.  App.  198, 
46  N.  E.  560;  Smith  v.  Investment  Co.,  314  Wis.  151,  89  N.  W.  829; 
State  V.  Wharton,  117  Wis.  558,  94  N.  W.  359.  See,  also,  cases  in  pre- 
ceding note. 

7  Post,  p.  121.  »  Post,  p.    204. 

8  Post,  p.  121.  10  Post,  p.    197. 


§  43)  UULES    FOR    ASCEKTAINING    INTKNTION.  IJl 

ent  discussion  is  confined  to  the  transfer  of  the  property  between 
the  seller  and  the  buyer,  and  the  effect  upon  the  riij^hts  of  third 
persons  of  the  failure  to  deliver  the  goods  will  be  considered 
later. 


RULES    FOR    ASCERTAINING    INTENTION. 

43.  Unless  a  different  intention  appears,  tlie  following  arc 
rnlcs  for  ascertaining  the  intention  of  the  parties  as 
to  the  time  \rhen  the  property  in  the  (;oods  is  to  jiass 
to   the  buyer: 

Rule  1.— UNCONDITIONAL  CONTRACT.  Where  there  is 
an  unconditional  contract  for  the  sale  of  specific 
poods  in  a  deliverable  state,  the  property  in  the  goods 
passes  to  the  buyer  when  the  contract  is  made,  and 
it  is  immaterial  xirhether  the  time  of  payment,  or  the 
time  of  delivery,  or  both,  be  postponed.' i 

Rule  2.— GOODS  TO  BE  PUT  INTO  DELIVERABLE  STATE. 
■Where  there  is  a  contract  for  the  sale  of  specific  goods, 
and  the  seller  is  bonnd  to  do  something  to  the  goods, 
for  the  purpose  of  putting  them  into  a  deliverable 
state — that  is,  into  a  state  in  which  the  buyer  is  bonnd 
to  accept  them — the  property  does  not  pass  until  such 
thing  is  done.i- 

Rule  3.— PRICE  TO  BE  ASCERTAINED  BY  W^EIGHING, 
MEASURING,  OR  TESTING.  W^here  there  is  a  con- 
tract  for  the  sale  of  specific  goods  in  a  deliverable 
state,  but  the  seller,  or,  in  some  jurisdictions,  the 
buyer,  is  bound  to  weigh,  measure,  test,  or  do  some 
other  act  with  reference  to  the  goods,  for  the  purpose 
of  ascertaining  the  price,  the  property  does  not  pass 
until  such  act  is  done.  In  other  jui'isdictions,  this 
rule   docs   not   prevail. 

Rule  I. —  Unconditional  Contract. 

Neither  delivery  of  the  goods  nor  payment  of  the  price  is 
requisite  for  vesting  the  property  in  the  goods  in  the  buyer;  but 
the  property  passes  by  the  contract  itself,  if  such  is  the  inten- 
tion of  the  parties.  Such  has  always  been  the  rule  of  the  com- 
mon law  in  regard  to  delivery;   but  it  seems  to  have  been  the 

11  See  Sales  Act.  §  19,  rule  1. 

12  See  Sales  Act,  §  19,  rule  2. 


122  EFFECT    OF    CONTRACT   IN    PASSING   PROPERTY.       (Ch.  3 

law  in  early  times  that  payment  of  the  price  was  a  condition 
precedent  to  the  vesting  of  the  property  in  the  buyer,  unless  the 
sale  was  upon  credit — that  is,  unless  by  the  contract  the  buyer 
was  entitled  to  possession  of  the  goods  before  paying  the 
price. ^^  By  the  modern  English  rule,  however,  if  the  goods 
are  specific  and  in  a  deliverable  state,  and  a  different  intention 
does  not  appear,  the  property  passes  immediately.^*  "By  the 
law  of  England,  by  a  contract  for  the  sale  of  specific  ascertained 
goods,  the  property  immediately  vests  in  the  buyer,  and  a  right 
to  the  price  in  the  seller,  unless  it  can  be  shown  that  such  was 
not  the  intention  of  the  parties."  ^^  The  distinction  between  the 
property  and  the  right  to  possession  must  be  borne  in  mind, 
for,  although  the  property  passes,  the  buyer  is  not  entitled,  un- 
less credit  is  given,  to  possession  of  the  goods  without  payment 
of  the  price — in  other  words,  the  property  passes  subject  to 
the  seller's  lien ;  ^^  and  neither  is  the  seller  bound  to  deliver  pos- 
session, nor  the  buyer  to  pay  the  price,  except  upon  perform- 
ance by  the  other  party.^^  It  follows  that  an  intention  to  defer 
the  vesting  of  the  property  is  not  shown  by  a  stipulation  that 
possession  is  not  to  be  delivered  until  payment  of  the  price,^® 
or  by  the  fact  that  nothing  is  said  as  to  the  time  of  payment  or 
delivery.  "Generally  speaking,  where  a  bargain  is  made  for 
the  purchase  of  goods,  and  nothing  is  said  about  payment  or 
delivery,  the  property  passes  immediately,  so  as  to  cast  upon 
the  purchaser  all  future  risk,  if  nothing  further  remains  to  be 

isNoy,  Max.  pp.  87-S9;  Blackb.  Sales,  171;  Benj.  Sales,  §  315;  2 
Kent,  Comm.  492. 

14  Tarling  v.  Baxter,  6  Barn.  &  C.  360;  Simmons  v.  Swift,  5  Barn. 
&  C.  862,  per  Bayley,  J.;  Dixon  v.  Yates,  5  Barn.  &  Adol.  313,  per 
Park,  J.;  Barr  v.  Gibson,  3  Mees.  &  W.  390;  Martindale  v.  Smith,  1 
Q.  B.  389;  Gilmour  v.  Supple,  11  Moore,  P.  C.  566;  Seath  v.  Moore, 
11  App.  Cas.  350,  370;  Sale  of  Goods  Act,  §  18,  rule  1;  Benj.  Sales, 
§§  313,  317. 

15  Gilmour  v.  Supple,  11  Moore,  P.  O.  566.  See,  also,  Calcutta  Co. 
V.  De  Mattos,  32  Law  J.  Q.  B.  322,  328,  where  Blackburn,  J.,  pro- 
nounced this  "a  very  accurate  statement  of  the  law," 

It  seems  that  such  an  intention  Is  shown  by  the  circumstances  of 
the  case  in  a  sale  by  a  shopman  over  the  counter.  Bussey  v.  Bai'nett, 
9  Mees.  &  W.  312 ;  Blackb,  Sales,  173.    Cf.  Paul  v.  Reed,  52  N.  H.  13S. 

16  Post,    p,    312. 

IT  Post,   p.   268.  IS  Tarling  V.  Baxter,  supra. 


§  43)  RULES    FOR    ASCERTAINING    INTENTION.  12."'. 

done  to  the  goods,  although  he  cannot  take  them  auav  w ithc^ut 
paying  the  price."  ^® 

The  general  rule  in  this  country  coincides  with  the  I'.ngiish 
rule,  and  it  is  held  that  if  the  parties  have  agreed  upon  the 
specific  goods,  and  nothing  remains  but  that  the  buyer  shall 
pay  the  price  and  take  the  goods,  the  property  passes  to  the  buy- 
er, with  the  consequent  risk  of  loss  from  fire  or  other  accident.*" 
It  is  often  said,  indeed,  that  in  a  cash  sale  (and  all  sales  in 
which  no  time  is  agreed  upon  for  payment  are  prima  facie 
cash  sales)  -^  the  property  does  not  pass  until  payment,  and 
some  cases  appear  so  to  hold.^^  It  is  always  possible  for  the 
parties  to  agree  that  the  property  shall  not  pass  until  payment, 

i»  Simmons  v.  Swift,  suitra.  per  Bayley,  J. 

20  Leonard  v.  Davis,  1  Black-  (U.  S.)  476,  483,  17  L.  Ed.  222;  Blunt 
V.  Little,  3  Mason  (U.  S.)  107,  110,  Fed.  Cas.  No.  1,578;  Morse  v. 
Sherman.  10(5  Mass.  430;  Haskins  v.  Warren,  115  ^L^ss.  514,  533; 
Ooddard  v.  Binney,  lip  Mass.  450,  455.  15  Am.  Rep.  112;  Townseud 
V.  Ilarsraves,  118  Mass.  325,  332;  Wing  v.  Clark.  24  Me.  3GG;  Pbil- 
lips  V.  Moor,  71  Me.  78;  Clark  v.  Greeley,  G2  N.  H.  3!>1;  Olyphant  v. 
Baker,  5  Denio  (X.  Y.)  370-383;  Bissoll  v.  Balcom,  30  N.  Y.  275.  279; 
Johnson  v.  Elwood,  .53  N.  Y.  431;  Brock  v.  O'Donnell,  45  N.  .T.  Law, 
441;  Jenkins  v.  Jarrett,  70  N.  C.  255;  Sweeney  v.  Owsley,  14  B.  Mon. 
(Ky.)  413;  Barrow  v.  Window,  71  111.  214;  Bertelson  v.  Bower.  81 
Ind.  512;  Powers  v.  Dellinger,  54  Wis.  380,  11  N.  W.  597;  Rail  v. 
Lumber  Co.,  47  Minn.  422,  50  N.  W.  471:  Towne  v.  Davis,  GG  N.  H. 
39G.  22  Atl.  450;  Thompson  v.  Brannin.  04  Ky.  490,  21  S.  W.  1057; 
Levasseur  v.  Gary  (Me.)  3  Atl.  4G1;  Noah  v.  Pierce.  85  Mich.  70,  48 
N.  W.  277;  Van  Brocklen  v.  Smeallie,  140  N.  Y.  70,  35  N.  E.  415; 
Thompson  v.  Brannin,  94  Ky.  490.  21  S.  W.  1057;  Montgomei-y  Furni- 
ture Co.  V.  Hardaway,  104'Ala.  100,  10  South.  29;  Orug  v.  Gorham, 
74  Conn.  541,  51  Atl.  519;  Richardson  v.  Insurance  Co..  1.30  N.  C.  314. 
48  S.  E.  733;  Baker  v.  McDonald  (Neb.)  104  N.  W.  923.  1  L.  R.  A. 
(N.  S.)  474. 

21  Scudder  v.  Bradbury.  lOG  Mass.  422,  4-J7;  Goodwin  v.  Railroad 
Co..  Ill  Mass.  487.  489;  Riley  v.  Wheeler,  42  Vt.  528:  Ward  v.  Shaw. 
7  Wend.  (N.  Y.)  40i;  Pickett  v.  Cloud.  1  Bailey  (S.  C.)  302;  Wabash 
Elevator  Co.  v.  Bank,  23  Ohio  St.  311;  Michigan  O.  R.  Co.  v.  Phillips. 
GO  111.  190;  Allen  v.  Hartfield,  7G  111.  358;  Fenelon  v.  Hogoboom.  31 
Wis.  172,  17G ;  Southwestern  Freight  &  Cotton  Press  Co.  v.  Stannard. 
44  Mo.  71.  100  Am.  Dec.  255;  Beauch.imp  v.  Archer,  58  Cal.  431,  41 
Am.  Rep.  2GG ;  2  Kent,  Comm.  497 ;  ix)st,  p.  2G8. 

2  2  Copland  v.  Bosquet.  4  Wash.  C.  C.  (U.  S.)  588,  Fed.  Cas.  No. 
3.212;  Turner  v.  .Moore,  58  Vt.  455.  3  Atl.  407:  Bergan  v.  Magnus,  OS 
Ga.  514,  25  S.  E.  570.  See,  also.  Com.  v.  Devlin,  141  Mass.  423.  6  N. 
E.  64. 


124  EFFECT   OF   CONTRACT   IN    PASSING    PROPERTY.       (Ch.  3 

and  in  some  cases  a  stipulation  that  the  buyer  shall  pay  cash 
or  give  a  note  or  other  security  for  the  price  may  be  interpre- 
ted as  indicating  such  an  intention,-^  while  in  other  cases  such 
an  intention  may  be  indicated  by  other  circumstances.^* 

In  many  of  the  cases,  where  it  is  said  that  the  property  does 
not  pass,  however,  the  question  involved  was,  not  whether  the 
property  had  passed,  but  whether  the  buyer  had  the  right  to 
possession,  and  consequently  had  acquired  a  complete  title.  It 
is  true,  of  course,  that  unless  credit  is  given  the  buyer  does 
not  acquire  a  complete  title  until  payment,  since  until  payment 
he  has  not  the  right  to  possession ;  and  even  where  the  seller 
delivers  the  goods,  if  he  does  so  upon  the  understanding,  ex- 
press or  implied,  that  he  is  to  receive  immediate  payment,  the 
delivery  is  conditional  only,  and  if  such  payment  be  not  made 
he  has  the  right  to  reclaim  the  goods. ^^     In  such  cases  it  is 

2  3  Whitney  v.  Eaton,  15  Gray  (Mass.)  225 ;  Young  v.  Manufacturing 
Co.,  23  Fla.  3S4,  2  South.  817;  Empire  State  Type  Founding  Co.  v. 
Grant,  114  N.  Y.  40,  21  N.  E.  49;  Adams  v.  Lumber  Co.,  159  N.  Y. 
17G,  53  N.  E.  805;   Bonham  v.  Hamilton,  66  Ohio  St.  82,  63  N.  E.  597. 

"The  terms  of  the  sale  were  'cash  or  a  bankable  note,'  and  this 
fact  is  to  be  considered  in  determining  whether  the  parties  intended 
a  completed  sale.  If  by  the  use  of  these  terms  the  parties  understood 
merely  that  no  credit  was  to  be  given,  and  that  the  seller  would  in- 
sist on  his  right  to  retain  possession  of  the  hay  until  the  price  was 
paid  or  secured,  the  sale  might  still  be  so  far  completed  and  absolute 
that  the  property  would  pass;  but,  if  it  was  the  understanding  that 
the  hay  was  to  remain  the  property  of  the  seller  until  the  price  was 
paid  or  secured,  the  sale  was  conditional,  and  the  title  would  not  pass, 
even  on  delivery,  without  performance  of  the  condition.  *  *  * 
Upon  the  facts  stated  in  the  case,  a  referee  has  found  that  the  title 
to  the  hay  did  not  vest  in  the  defendant  at  the  time  of  the  auction 
sale.  There  was  evidence  upon  which  he  could  find  either  way.  and 
his  finding  is  not  open  to  revision,  no  error  of  law  appearing."  Towne 
V.  Davis,  60  N.  H.  396,  22  Atl.  450.  And  see  cases  cited  in  note  25, 
infra. 

24  Paul  V.  Reed,  52  N.  H.  136;  Evansville  &  T.  H.  R.  Co.  v.  Erwiu, 
84  Ind.  457;  Fishback  v.  Van  Dusen.  33  Minn.  Ill,  22  N.  W.  244; 
Ballantyne  v.  Appleton,  82  :\Ie.  570,  20  Atl.  235;  Kerr  v.  Henderson. 
62  N.  .7.' Law,  724,  42  Atl.  1073. 

25Haskins  v.  Warren,  115  Mass.  514,  534,  per  Wells,  J.;  Goodwin 
V.  Railroad  Co.,  Ill  Mass.  487,  489;  Palmer  v.  Hand,  13  Johns.  (N. 
Y.)  434,  435,  7  Am.  Dec.  392;  Leven  v.  Smith,  1  Denio  (N.  Y.)  571; 
Hayden  v.  Demets,  53  N.  Y.  426.  431  :  Morey  v.  Medbury.  10  Hun 
(N.  Y.)  540;  Allen  v.  Hartfield,  76  111.  358,  361;   Fenelon  v.  Hogoboom, 


§  43)  RULES    FOR    ASCKRTAININO    INTKNTION.  1  •_'."» 

sometimes  said  that  the  jiroporty  has  not  passed,  when  it  was 
only  necessary  to  determine  that  the  delivery  was  conditional 
upon  payment,  and  hence  that  the  hnyer  had  not  acquired  the 
right  to  possession  and  a  perfect  title.-" 

Rule  2. — Goods  to  be  Put  in  Deliverable  State. 

Although  an  agreement  for  the  sale  of  a  specific  chattel  is 
jtrima  facie  an  executed  sale,  the  presumption  may,  as  we  have 
seen,  be  rebutted;  and,  if  it  ajipears  that  the  parties  have 
agreed  that  the  property  shall  pass  on  the  performance  of  a 
condition,  the  property  will  not  pass  until  the  condition  is  per- 
formed; and,  if  nothing  has  occurred  in  the  meantime  to  de- 
feat the  transfer,  it  will  then  take  place.  When  the  parties 
have  not  ex])rcssed  their  intention  clearly,  it  must  be  collected 
from  the  whole  agreement.  The  rule  now  imder  consideration, 
as  well  as  rule  3,  of  which  there  is  no  trace  in  the  reports  be- 


st Wis.  172,  17G;  Riley  v.  Wbeeler.  42  Vt.  52S,  r.;;2.  See,  also,  Tyler 
V.  Frooiiian,  3  Cusli.  (Mass.)  201;  Whitney  v.  Eaton,  15  Gray  (Mass.) 
21'.");  Ilirscborn  v.  Canney.  9S  Mass.  14D;  Adams  v.  O'Connor,  HX) 
Mass.  515,  1  Am.  Rop.  137;  Stone  v.  Terry,  (Ml  Me.  48;  Seed  v.  Lord. 
m  Mo.  5S0;  Peabody  v.  Majruire.  70  Me.  572.  575.  12  Atl.  g:JU  ;  Paul 
V.  Reetl,  52  N.  II.  130;  Dows  v.  Kidder,  84  N.  Y.  121;  Harris  v.  Smith. 
3  Scrg.  &  R.  (Pa.)  20;  Lester  v.  MeDowell,  18  Pa.  91;  Waiiash  Klova- 
tor  Co.  V.  Panic.  23  Ohio  St  311 ;  Fishback  v.  Van  Dusen,  33  Minn. 
Ill,  22  N.  W.  244;  2  Kent,  Conini.  4;)7;  Empire  State  Type  Fonndin- 
Co.  V.  Grant,  114  N.  Y.  40,  21  N.  E.  40:  Johnson-Rrinjvbam  Commis- 
Kion  Co.  V.  Rank,  110  Mo.  558,  22  S.  W.  813,  38  Am.  St.  R<'i).  015; 
Wilson  &  "Wallace  v.  Comer.  125  Ga.  500,  54  S.  E.  355.  As  to  condi- 
tional delivery,  see  National  liank  of  Commerce  v.  Railroad  Co.,  44 
Minn.  224,  46  N.  W^  342.  500,  9  L.  R.  A.  2U3,  20  Am.  St.  Rep.  500.  and 
(•a«;es  cited  In  prece<ling  note.  In  many  of  these  cases  it  is  said 
tliat  the  "property"  had  not  passed,  and  in  some  of  tiioni  it  is  clear 
that  it  had  not,  either  because  at  the  time  of  the  bar}.'ain  the  goods 
were  not  In  a  deliverable  state  or  were  not  specific,  or  because  deliv- 
ery was  to  be  made  by  the  buyer  at  a  particular  jilace.  or  for  somo 
ntlior  reason;  "while  in  others  it  is  clear  that  it  nnist  have  been  ht'id. 
hail  the  question  been  raised,  that  the  risk  of  loss  was  by  the  con- 
tract east  upon  the  buyer,  and  hence  that  the  property  passe<l.  In 
all  such  cases,  where  the  question  is  simply  whether  the  buyer 
acquired  a  good  "title,"  it  is  immaterial  to  determine  whether  the 
sale  was  conditional,  or  whether  only  the  delivery  was  conditional, 
since  in  either  case  the  title  of  tlie  buyer  is  conditional  upon  payment. 
See  Benj.  Sales  (Corbiu's  Gth  Am.  Ed.)  §  318  et  seq. 
2  6  Post.  p.   130. 


126  EFFECT    OF   CONTRACT   IN    PASSING   PROPERTY.       (Ch.  3 

fore  the  time  of  Lord   Ellenborough,   appear  to   have  been 
adopted  from  the  civil  law.''' 

Blackburn  observes  that  the  first  rule*  is  founded  in  reason. 
Inasmuch  as  it  is  for  the  benefit  of  the  seller  that  the  property 
should  pass  and  the  risk  of  loss  be  thereby  transferred  from  the 
seller,  who  may  still  retain  possession  of  the  goods  as  security 
for  the  price,  it  is  reasonable  that,  where  the  seller  is  bound  to 
do  something  before  he  can  call  upon  the  buyer  to  accept  the 
goods,  the  intention  of  the  parties  should  be  presumed  to  be 
that  the  seller  is  to  do  the  thing  before  obtaining  the  benefit  of 
the  transfer.^*  The  rule  is  firmly  established  both  in  Eng- 
land ^®  and  in  America. ^°  Thus,  in  the  case  of  trees  to  be  trim- 
med,^^  cotton  to  be  ginned  and  baled, ^-  fish  to  be  dried,^^  grain 
to  be  threshed,^*  hops  to  be  baled,^^  or  animals  to  be  fat- 
tened,^® by  the  seller,  the  doing  of  that  thing  is  presumptively 

27  Blackb.  Sales,  174. 

♦Blackburn's  first  rule, — here  Rule  2. 

2  8  Blackb.  Sales,  175;  Benj.  Sales.  §  318  et  seq.  The  presumption 
yields  to  evidence  of  a  contrary  intention.  Young  v.  Matthews,  L. 
R.  2  C.  P.  127;   Barber  v.  Thomas,  66  Kan.  463,  71  Pac.  845. 

29  Rugg  V.  Minett,  11  East,  210;  Acraman  v.  Morrice,  8  C.  B.  449, 
19  Law  J.  C.  P.  57 ;  Tansley  v.  Turner,  2  Scott,  238,  2  Bing.  N.  C. 
151;  Boswell  v.  Kilborn,  15  Moore.  P.  C.  309,  8  Jur.  443;  Seath  v. 
IMoore,  11  App.  Cas.  350.  370.  The  English  act  requires  notice  to  the 
buyer  that  the  act  has  been  done.  Sale  of  Goods  Act.  §  18,  rule  2. 
But  the  decisions  in  this  country  do  not  add  this  qualification. 

3  0  Elgee  Cotton  Cases,  22  Wall.  (U.  S.)  180,  188,  22  L.  Ed.  863;  Fos- 
ter V.  Ropes,  111  Mass.  10:  Sumner  v.  Hamlet  12  Pick.  (Mass.)  76. 
82;  North  Pacific  Lumbering  &  :Mfg.  Co.  v.  Kerron.  5  Wash.  214,  31 
Pac.  595;  Malone  v.  Stone  Co.,  36  Minn.  325,  31  N.  W.  170  (payment  of 
storage  charges);  Cunningham  Iron  Co.  v.  Manufacturing  Co.  (C  C.) 
SO  Fed.  878;  Larkin  t.  Johnson.  8  Kan.  App.  114.  54  Pac.  690;  James 
Smith  Woolen  Mach.  Co.  v.  Holden.  73  Yt.  .396,  51  Atl.  2;  Backhaus 
V.  Buells,  43  Or.  558,  73  Pac.  342;  See  Sales  Act.  §  19,  rule  2.  Cf. 
Sale  of  Goods  Act,  §  18.  rule  2.  See,  also,  cases  cited  in  the  succeed- 
ing notes  to  this  paragraph. 

31  Acraman  v.  Morrice.  8  C.  B.  449.  19  Law  J.  C.  P.  57. 

3  2  Elgee  Cotton  Cases.  22  Wall.  (U.  S.)  180,  193,  22  L.  Ed.  863; 
Bond  v.  Greenwald,  4  Heisk.  (Tenn.)  453. 

3  3  Foster  v.  Ropes,  111  Mass.  10. 

34  Groff  V.  Belche,  62  Mo.  400;  Thompson  v.  Conover,  32  N.  J.  Law, 
466. 

3  5  Keeler  v.  Yandervere,  5  Lans.  (X.  Y.)  313. 

36  Restad  V.  Engemoen,  65  Minn.  148,  67  X.  W.  1146. 


§43)  RULES    FOU   ASCKKTAIMNG    INTKNTIoN.  iL'T 

a  condition  precedent  to  the  transfer  of  the  property.  Anrl 
if  the  parties  contract  for  the  sale  of  an  unfinished  chattel,  as 
a  partly-built  carriag^e  or  ship,  in  the  absence  of  anything  to 
show  a  contrary  intention,  the  property  will  not  pass  until  the 
chattel  is  completed."  It  is  also  within  the  principle  of  this 
rule  that,  if  the  goods  are  to  be  delivered  by  the  seller  at  a 
particular  place,  the  property  will  not  pass  until  delivery,'" 
unless  a  contrary  intention  is  expressed  ^®  or  is  inferable  from 
other  circumstances,  such  as  the  payment  of  the  price.*"  But 
the  fact  that  something  is  to  be  done  to  the  goods  by  the  seller 
after  delivery  will  not  prevent  the  property  from  passing,*^ 
unless  a  different  intention  appears. '•^ 

Rule  5. — Price  to  be  Ascertained  by  Weighing,  Measuring,  or 

Testing. 

Blackburn  states  the  rule,*^  that  where  anything  remains  to 
be  done  to  the  goods  for  the  purpose  of  ascertaining  the  price, 
as  by  weighing,  measuring  or  testing  the  goods,  etc.,  the  per- 
formance of  that  thing  is  a  condition  precedent  to  the  trans- 
fer of  the  property,  thus  stating  the  rule,  not  as  one  of  pre- 
sumption, but  as  an  absolute  rule;  and  he  regards  it  as  hastily 


87  Halterllne  v.  Rice,  62  Barb.  (X.  Y.)  593;  Pritchett  v.  Jones,  4 
Rawle  (Pa.)  2G0.  As  to  contracts  for  chattels  to  be  manufactured 
by  the  seller,  see  post,  p.  360. 

3  8  Calcutta  &  B.  S.  Nav.  Co.  v.  De  Mattos,  32  Law  J.  Q.  B.  322, 
3.3.".  per  Cockburn,  0.  J.;  The  Venus,  8  Cranch  (U.  S.)  253.  275,  3  L. 
Ed.  553;  Suit  v.  Woodhall,  113  Mass.  391;  Sneathen  v.  (Irubbs.  88 
Pa.  147;  Dcvine  v.  Edwards,  101  111.  138;  Miller  v.  Seaman.  176 
Pa.  291,  35  Atl.  134;  Northern  Pacific  Lumbering  &  Mfg.  Co.  v,  Ker- 
rou,  5  Wash.  214,  31  Pac.  .595. 

88  Lj-nch  V.  O'Donnell,  127  Mass.  311. 

*o  Weld  V.  Came,  98  Mass.  152;  Terry  v.  Wheeler,  25  N.  Y.  520; 
Bethel  Steam-Mill  Co.  v.  Brown,  57  Me.  9,  18,  99  Am.  Dec.  572;  Ling- 
ham  V.  Egpleston,  27  Mich.  324,  329;  Rail  v.  Lumber  Co.,  47  >[lnn. 
422.  50  N.  W.  47] ;  Peuley  v.  Bessey,  87  Me.  530,  33  Atl.  21;  McElwee 
V.  Lumber  Co..  69  Fed.  302,  16  C.  C.  A.  232;  Morris  v.  Winn,  98  Ga. 
482,  25  S.  E.  5G2;  Lynch  v.  Dapgett,  02  Ark.  .502.  37  S.  W.  227;  Haglns 
V.  Combs.  102  Ky.  165.  43  S.  W.  222. 

<i  Hammond  v.  Anderson.  1  Bos.  &  P.  (N.  R.)  69;  Graves  v.  Ilopke, 
2  Barn.  &  Aid.  131;  Mount  Hope  Iron  Co.  v.  Bufhnton,  103  Mass. 
62;    Morrow  v.  Reed,  30  Wis.  81. 

*2  Kitson  Mach.  Co.  v.  Holden,  74  Vt.  1(M.  52  Atl.  271. 

«3  Blackburn's  second  rule. 


128  EFFECT   OF    CONTRACT   I>'   PASSING   PROPERTY.       (Ch.  3 

adopted  from  the  civil  law,  where  it  was  a  logical  deduction 
from  the  principle  that  there  could  be  no  sale  until  the  price 
was  fixed.**  But  the  Court  of  Exchequer,  in  1863,  reviewed 
the  English  authorities,*^  and  concluded  that  the  rule  should  be 
modified  by  confining  it  to  acts  to  be  done  by  the  seller,  and 
that  it  is  to  be  regarded  merely  as  a  rule  of  presumption,  thus 
bringing  it  within  the  principle  of  the  second  rule.*" 

The  rule  is  generally  laid  down  in  the  United  States  as  one 
of  presumption,  sometimes  without  confining  it  to  acts  to  be 
done  by  the  seller,*'  though  sometimes  confining  it  to  acts  to 
be  done  by  the  seller  or  by  the  seller  in  connection  with  the 
buyer.*^  In  some  cases  it  has  been  confined  to  acts  to  be  done 
by  the  seller.*^ 

It  is  to  be  observed,  however,  that  in  many  of  the  cases 
which  declare  the  rule  the  weighing,  measuring,  or  testing 
was  necessary,  not  merely  to  ascertain  the  price,  but  to  as- 
certain the  goods  by  separating  them  from  a  larger  mass,  and 
the  property-  could  not  pass  because  the  goods  were  not  specif- 

**  Blackb.  Sales,  175. 

*s  Hanson  v.  Meyer,  6  East  614;  Zagury  v.  Furnell,  2  Gamp.  240; 
Withers  v.  Lyss,  4  Camp.  237;  Simmons  v.  Swift,  5  Bam.  &  C.  857; 
Logan  V.  Le  Mesurier,  6  Moore,  P.  C.  116. 

*5  Tnrley  v.  Bates,  2  Hurl.  &  C.  2tX).  33  Law  J.  Exch.  43;  Chalm. 
Sale  of  Goods  Act  (6th  Ed.)  49.  The  point  was  not  necessary  to  the 
decision  of  Tiirley  v.  Bates.  Of.  Martineau  v.  Kitching,  L.  R.  7  Q.  B. 
436. 

Sale  of  Goods  Act,  §  18,  rule  3,  so  provides,  adding  the  requirement 
of  notice  to  the  buyer, 

47  Mac-omber  v.  Parker,  13  Pick.  (Mass.)  175,  183:  Riddle  v.  Tar- 
num,  20  Pick.  (Mass.)  2S0;  Barnard  v.  Poor,  21  Pick.  Qlass.*  37S: 
Sherwin  v.  Mudge.  127  Mass.  547;  Smart  v.  Batchelder,  57  X.  H.  140: 
Nesbit  v.  Burry,  25  Pa.  20S;  Nicholson  v.  Taylor.  31  Pa.  128.  72  Am. 
Dec.  728;  Frost  v.  Woodruff,  54  Hi.  1.55;  Rosenthal  v.  Kahn,  19  Or. 
571,  24  Pac.  989;  Gibbs  v.  Benjamin,  45  Vt.  124:  Wesolo^l  v. 
Wyso.?ki,  186  Mass.  495.  71  X.  E.  982. 

*8  Elgee  Cotton  Cases.  22  WaU.  (U.  S.)  180,  l&S,  et  seq..  22  L.  Ed. 
8*53;  Lingham  v.  Eggleston.  27  Mich.  .324:  Boswell  v.  Green.  25  N. 
J.  Law,  390.  398:  Haxall  v.  Willis,  15  Grat.  (Ta.)  434.  442:  McCIung 
T.  Kelley,  21  Iowa.  -j^'iS.  511;  King  v.  .Tarmam  35  Ark.  190.  37  Am. 
Rep.  11;  H.  M.  Tyler  Lumber  Co.  v.  Charlton,  128  Mich.  299.  87  N. 
W.  268.  55  L.  R.  A.  301,  92  Am.  St.  Rep.  452;  Parman  v.  Marshall 
(Tenn.)  51  S.  W.  116. 

*9  Burke  v.  Shannon.  43  S.  W.  223.  19  Ky.  Law  Rep.  1170. 


.   -.■  BUXES  FOR  XSCERTAIXIXG   ISTENTIOX.  129 

ic.'*    At  best  the  fact  that  the  price  remains  to  be  ascertained 

affords  little  reason  for  inferring  an  intention  that  the  property 

-'    ■'       '.  pass;   and  in  some  jurisdictions  the  rule  is  not  rec- 

but  it  is  held,  as  in  other  cases  where  there  •?  ?r!  un- 

al  contract   for  the   sale  of  goods  in  a  '  le 

...at  the  propert)-  passes  unless  a  dir-'— *  •  p- 

'  J  ^rs.**    The  Sales  Act  omits  the  rule.** 

Ir.   ■■■''  -  where  the       '  .re 

a::.:ri!'y  :,  it  is  held  to 

c  —  p!ete  the  sale;  and  in  such  case  a  provision  that  they  are 
t:  b«  weighed,  measured,  or  tested  \»-ill  not  present  the  prop- 
er:;.- from  passing."  And.  if  the>-  have  been  weighed,  meas- 
:rj  :.  or  tested,  the  mere  arithmetical  calculation  of  the  price 
is  inunaterial.** 

Where  the  property*  has  passed,  so  that  the  goods  are  at  the 
risk  of  the  buyer,  but  the  goods  are  destroyed,  and  consequently 

»•  Se?  Jovce  T.  Adams.  S  N.  Y.  237  Batcbelder.  5T  N.  H. 

1*>:   Martin  v.  Hurlbut  9  Minn.  Ii2  -  :    RosMithal  t.  Kahn. 

ID  Or.  571.  24  Pac  989;   post.  p.  147. 

'■'-  ?a-rer  r.  Waterbury.  116  X.  Y.  37L  22  N.  E.  40i:  aereUnd  r. 
29  Tex.  2«>4.  iH  Am.  Dec  274 ;  Boaz  v.  Schneider.  69  Tex. 
.V.  4«:'2:  La>5:n?  v.  Jam".  :"'"  r-i  "?■?  ir,  p^e.  534:  Yoraig 
T.  .M:  k>r.  14  Colo.  App.  2n4.  -59  :  :  jrd,  72  Neb. 

.-'7    11   N.  W.  Kr2S.     And  soe  .  t.  Gill.  69 

-M:  "^7.  16  AU.  214.  1  I*  R.  A.  7o7.  if  Am.  Sl  KtV-  443:  lyDMell  r. 
Uv.-t  n.  71  Mich.  6S1.  40  X.  W.  2S:  Allen  v.  Kmore,  121  Iowa.  241, 
96  N.  W.  7'Xj.    Cf.  Kein  t.  Tupper.  32  N*.  Y.  550. 

»i  S«e  Sak-s  Act.  f  19.     Cf.  Sale  of  CxkIs  Act  f  1*^  rr'e  3. 

5JMi    ml^r  V.  Parker.  1.3  Pick.  «Ma5*.>  175.  IS-  v.  Var- 

narn.  -yj  P:-^<.  'Mi-?..  2S<>;  Well  t.  Railroad  Co.,  !•  "••:   Bur- 

ro-x?  V.  ^^  71  X.  Y.  291.  27  Am.  Rep.  42:    Bi.5.«*.-ii  v.  Green, 

27.  N.  J.  :  .^?<v.tt  r.  Wells,  6  W-"=  A:  S   rPa.)  357.  40  .\m.  Dec. 

.»^:   Leonard  v.  Davis.  1  Black  tX".  S       '  17  L.  Ed.  222:   Upson 

T.  Holmes.  51  Conn.  5«>^:    Baldwin  t.  r""*  V-   7   «  AtL  576: 

Hr.xall  V.  Willis,  15  Grar.  lYa.i  434.  4  73  Ala. 

177..  49  Att..  R'^r-   43:   r^'^r.T.zh'^.'"  v  _  M.>rrow 

T.  Re»>l  '  -  lit*  liL  75.  >>  X.  E,  771:  Sedsr- 

^■c'=J  ^    '  -        -V.  W.  73S;   King  v.  Jarman.  35 

passes,  if  such  is  the  intention,  althoa^h  the  necessary 
acts  Live  act  been  done,  Maybeny  r.  Mill  Co.,  112  Tenn.  5^.  85  S. 
W.  401. 

5«  Tan^iley  v.  Turner.  2  Bins.  X.  C.  151:   Bradler  r.  Wheeler.  44  N. 
Y.  4^:  Welch  t.  Spies.  103  Iowa.  3S9.  72  X.  W.  54S 
Tttf.Sali:s(2d  Ei>.\ — 9 


130  EFFECT  OF  CONTRACT  IN   PASSING  PROPERTY.       (Ch.  3 

the  price  cannot  be  ascertained  by  weighing,  or  measuring, 
in  the  manner  agreed,  the  weight  or  quantity  may  be  as- 
certained in  some  other  way,  and  the  buyer  may  recover  the 
price.''* 


BESEBVATIOX    OF    RIGHT    OF    POSSESSION    OB    PBOP- 

EBTY. 

44.  Where  there  is  a  contract  for  the  sale  of  specific  goods, 
the  seller  may  by  the  terms  of  the  contract  reserve  the 
right  of  possession  or  property  in  the  goods  nntil  cer- 
tain conditions  have  been  fulfilled.  The  right  of  pos- 
session or  of  property  may  be  thns  reserved,  notwith- 
standing the  delivery  of  the  goods  to  the  bnyer,  or  to 
a  carrier  or  other  bailee  for  the  purpose  of  transmis- 
sion to  the  bnyer.  5  8 

In  General. 

As  we  have  seen,  where  there  is  a  contract  for  the  sale  of 
specific  goods  the  property  in  them  is  transferred  to  the  buyer 
at  such  time  as  the  parties  intend  it  to  be  transferred.''^  By 
the  terms  of  the  contract  the  property  may  pass  when  the  con- 
tract is  made,  and  in  such  case  the  transfer  of  the  property  may 
be,  and  generally  is,  subject  to  the  sellers  lien;  that  is,  the 
seller  may  reserve  the  right  of  possession  in  the  goods  until 
payment  of  the  price.'*  As  a  rule  the  seller  loses  this  right 
when  he  delivers  the  goods  to  the  buyer. '^  Again,  by  the  ex- 
press or  implied  terms  of  the  contract  the  seller  may  reserve 
the  property  in  the  goods  until  certain  conditions  shall  have 
been  fulfilled,®"  and  this  notwithstanding  the  delivery  of  the 
goods  to  the  buyer.®^  "Where  the  buyer  is  by  the  contract 
bound  to  do  anything  as  a  condition,  either  precedent  or  con- 
current, on  which  the  passing  of  the  property  depends,  the 

55  Martineau  v.  Kitching,  L.  R.  7  Q.  B.  436,  455  (per  Blackburn,  J.); 
Upson  V.  Holmes,  51  Oonn.  500;  Sedgwick  v.  Cottingham,  54  Iowa, 
512,  6  N.  W.  738;  Gill  v.  Benjamin,  64  Wis.  362,  25  N.  W.  445,  54  Am. 
Rep.  619;   Allen  v.  Elmore,  121  Iowa,  241,  96  N.  W.  769. 

6  6  See  Sales  Act,  §  20  (1).  so  Post,  p.  317. 

B7  Ante,   p.    119.  «o  Ante,  p.  12.5. 

68  Ante,  p.   122.  ei  Post,   p.    133. 


§  44)  KESERVATION    OF   RIGHT   OF   TOSSESSION.  l.'It 

property  will  not  pass  until  the  condition  is  fulfilled,  even 
though  the  goods  may  have  been  actually  delivered  into  the 
possession  of  the  buyer."  *' 

So,  notwithstanding  the  delivery  of  the  goods  to  a  carrier 
for  the  purpose  of  transiuission  to  the  buyer,  the  seller  may 
reserve  the  property  in  the  goods,  or  may  reserve  the  right  to 
possession,  as  in  the  case  of  shipments  C.  O.  D."'  The  cases 
involving  the  transfer  of  the  property  upon  delivery  of  the 
goods  to  a  carrier  arc  generally  cases  where  the  goods  were 
not  specific,  and  goods  were  subsequently  appropriated  to  the 
contract,  and  the  question  was  whether  the  seller  by  the  terms 
of  the  appropriation  had  reserved  the  property  or  right  of 
possession ;  but  where  the  contract  is  for  the  sale  of  specific 
goods  to  be  paid  for  on  delivery,  the  property  in  which  is  re- 
served by  the  contract,  the  question  whether  the  seller  has  re- 
tained the  property  or  the  right  to  possession,  notwithstanding 
delivery  of  the  goods  to  a  carrier  for  transmission  to  the  buyer, 
depends  upon  the  same  considerations.'* 

The  commonest  condition  precedent  to  the  passing  of  the 
property  is  the  payment  of  the  price.  Such  a  condition  may 
be  expressed,  or  it  may  be  implied  from  the  circumstances.'* 

Where  Property  and  Right  to  Possession  are  to  Pass  on  Pay- 
ment. 

As  a  rule,  where  no  such  condition  is  expressed,  if  the  goods 
are  specific  and  in  a  deliverable  state,  and  a  diflferent  intention 
does  not  appear,  the  property  in  the  goods  passes  when  the 
contract  is  made,  although  the  seller  is  entitled  to  retain  pos- 
session, unless  credit  is  given,  until  the  price  is  paid."''  But  an 
intention  that  the  property,  as  well  as  the  right  to  possession, 
shall  not  pass  until  payment,  may  be  indicated  by  the  conduct 
of  the  parties  and  the  circumstances  of  the  case ;  and  in  some 
cases  a  stipulation  that  the  goods  are  to  be  paid  for,  either 
in  cash,  or  by  note,  or  by  acceptance,  upon  delivery,  has  been 
held  to  indicate  such  an  intention.'^     In  all  cases  where  such 

«2  BenJ.  Sales,  §  320.  «3  Post.  p.  ir.T.  •*  Test,  p.  IGli. 

OS  Silsby  v.  Knilroad  Co.,  17G  Mass.  158,  57  N.  E.  37G;  ante,  p.  12a. 

«6  Ante,  p.  121. 

«T  Ante,  p.  124. 


132  EFFECT    OF   CONTRACT   IN    PASSING   PROPERTY.       (Ch.  3 

an  intention  appears,  the  property  will  pass  only  upon  payment, 
unless  the  condition  has  been  waived.®^ 

It  is,  of  course,  competent  for  the  seller  to  waive  the  con- 
dition, and,  since  payment  and  delivery  are  concurrent  and 
mutually  dependent  acts,®^  an  unconditional  delivery  by  the 
seller  without  payment  is  a  waiver  of  the  conditionj'*  If,  how- 
ever, the  delivery  is  conditional — that  is,  if  it  is  accompanied  by 
a  reservation  of  the  property  until  payment — the  condition  is 
not  waived.  To  constitute  a  conditional  delivery,  it  is  not  nec- 
essary that  the  seller  should  declare  the  condition  in  express 
terms ;  but  it  is  sufficient  if  the  intent  of  the  parties  can  be  in- 
ferred from  their  acts  and  the  circumstances  of  the  case. 
Hence,  if  the  delivery  is  made  with  the  expectation  that  the 
price  will  be  shortly  paid,  or  the  contemplated  security  given, 

88  Bishop  V.  Shillito,  2  Barn.  &  Aid.  329,  note  a.  And  see  cases 
cited  in  note  25,  supra,  and  notes  70,  75,  infra. 

69  Post,   p.   268. 

7  0  Smith  V.  Dennie,  6  Pick.  (Mass.)  262,  17  Am.  Dec.  368;  Farlow 
V.  Ellis,  15  Gray  (Mass.)  229;  Upton  v.  Cotton  Mills,  111  Mass.  446; 
Wigton  V.  Bowlev,  130  Mass.  252;  Peabody  v.  Maguire,  79  Me.  572, 
585,  12  Atl.  630;  Paul  v.  Reed,  52  N.  H.  136;  Ward  v.  Shaw,  7  Wend. 
(N.  Y.)  404;  Smith  v.  Lynes,  5  N.  Y.  41;  Parker  v.  Baxter,  86  N.  Y. 
586;  Cole  v.  Berry,  42  N.  J.  Law,  308,  36  Am.  Rep.  511 ;  Bowen  v. 
Burk,  13  Pa.  146;  Mackaness  v.  Long,  85  Pa.  158;  Thompson  v. 
Wedge,  50  Wis.  642,  7  N.  W.  560;  Fishback  v.  Van  Dusen,  33  Minn. 
Ill,  22  N.  W.  244;  Warder,  Mitchell  &  Co.  v.  Hoover,  51  Iowa,  491, 
1  N.  W.  795;  Freeport  Stone  Co.  v.  Carey,  42  W.  Va.  276,  26  S.  E. 
183;  Wheeler  &  Wilson  Mfg.  Co.  v.  Bank,  105  Ga.  57,  31  S.  E.  48; 
Hirsch  v.  Lumber  Co.,  69  N.  J.  Law,  509,  55  Atl.  645. 

"The  important  question,  in  determining  whether  there  has  been 
a  waiver  of  a  condition  of  sale,  is:  Has  the  vendor  manifested,  by  his 
language  or  conduct,  an  intention  o  •  willingness  to  waive  the  condi- 
tion and  make  the  delivery  unconditional  and  the  sale  absolute,  with- 
out having  received  payment  or  the  performance  of  the  conditions  of 
sale?  This  must  depend  on  the  intent  of  the  parties  at  the  time,  to  be 
ascertained  from  their  conduct  and  language,  and  not  from  the  mere 
fact  of  delivery  alone.  Whether  there  has  been  a  waiver  is  a  ques- 
tion of  fact.  It  may  be  proved  by  various  species  of  evidence — by  dec- 
larations, by  acts,  or  by  forbearance  to  act.  But,  however  proved,  the 
question  is:  Has  the  vendor  voluntarily  and  unconditionally  delivered 
the  goods  without  intending  to  claim  the  benefit  of  the  condition?" 
Fishback  v.  Van  Dusen,  supra,  per  Mitchell,  J.  And  see  George  W. 
Merrill  Furniture  Co.  v.  Hill,  87  :Me.  17,  32  Atl.  712.  See,  also,  Lewen- 
berg  V.  Hayes,  91  Me.  104,  39  Atl.  469,  64  Am.  St.  Rep.  215. 


JJ  44)  KESEUVATION    OF    KIGHT   OF    POSSESSION.  133 

the  delivery  will  ordinarily  be  conditional,  because  there  is  an 
implied  understanding  that  the  buyer  will  act  honestly,  and  take 
the  goods  subject  to  the  contract.  In  such  case,  if  the  payment 
or  security  is  omitted,  evaded,  or  refused  by  the  buyer  upon 
getting  possession,  the  seller  may  immediately  reclaim  the 
goods  ;''^  and  he  may  enforce  this  right  against  the  buyer's 
attaching  creditor''-  or  assignee  in  bankruptcy,^'  or  against 
an  innocent  purchaser  from  the  buyer.''* 

Unconditional  delivery  of  the  goods  to  a  carrier  or  other 
bailee  for  the  purpose  of  transmission  to  the  buyer  is  equiva- 
lent to  delivery  to  the  buyer,  and  is  a  waiver  of  the  condi- 
tion;  "  but  the  seller  may  reserve  the  property  in  the  goods, 
or  the  right  of  possession,  notwithstanding  such  delivery,  by 
indicating  his  intention  at  the  time  of  the  shipment.''* 

So-CaUcd  "Conditional  Sales." 

There  is  a  class  of  transactions,  commonly  called  "conditional 
sales,"  where  by  the  express  terms  of  the  contract  the  pos- 
session of  the  goods  is  to  be  delivered  to  the  buyer,  but  the 
property  in  them  is  to  remain  in  the  seller  until  payment  of 
the  price.  These  contracts  usually  provide  for  the  time  of 
payment,  and  the  price  is  often  payable  in  installments,  and 
they  are  sometimes  called  "installment  contracts."  They  are 
to  be  distinguished  from  those  contracts,  considered  in  the 
preceding  paragraph,  in  which  the  condition  is,  indeed,  that 
the  property  shall  not  pass  until  payment,  but  which  con- 
template that  payment  is  to  be  made  upon  delivery.''  The 
term  "conditional  sale"  is  misleading,  for  the  transaction  is  not 
a  sale,  but  a  contract  to  sell.  The  distinguishing  features  of 
these  contracts  are  that  they  confer  upon  the  buyer  the  right  to 

Ti  .Vnte,  p.  124. 

T2  Peabody  v.  McGuire,  79  Me.  572,  12  Atl.  630. 

78  Ballantyne  v.  Appleton,  82  Me.  570,  20  Atl.  235. 

T4  Natioual  Bank  of  Commerce  v.  Railroad  Co.,  44  Minn.  224.  46  N. 
W.  342,  5G0,  9  L.  R.  A.  203.  20  Am.  St.  Rop.  566.  But  see  Comer  v. 
Cunningham,  77  N.  Y.  391,  33  Am.  Rep.  626. 

■5  Scbarff  t.  Meyer,  133  Mo.  428,  34  S.  W.  858,  54  Am.  St.  Rep. 
672. 

T«  Post,    p.    102. 

7T  See  National  Bank  of  Commerce  v.  Railroad  Co..  44  Minn.  224. 
231,  46  N.  W.  ai2,  560,  9  L.  R.  A.  203,  20  Am.  St.  Rep.  506. 


134  EFFECT    OF    CONTRACT    IN    PASSING    PEOPEKTT.       (Ch.  3 

possession  and  use  of  the  goods  upon  prescribed  terms,  usually 
until  default  in  payment,  while  reserving  in  the  seller  the  prop- 
€rt)'  in  the  goods  as  securitv-  for  payment/* 

^'Conditional  Sale"  Distinguished  from  Other  Transactions. 

A  "conditional  sale"  differs  from  a  bailment  with  an  option  to 
buy,  in  that  the  buyer  is  bound  to  pay  the  price.^'  It  differs 
from  a  mortgage,  in  that  the  property^  is  not  transferred.*" 
In  many  respects,  indeed,  a  conditional  sale  is  analagous  to  a 
sale  with  a  mortgage  back  to  secure  the  price;  *^  but  the  two 
transactions  are  distinct.**  xA.t  the  same  time  it  is  often  diffi- 
cult to  determine  whether  a  particular  transaction  is  a  condi- 
tional sale,  or  whether  it  is  a  lease,  or  an  absolute  sale  with  a 
reservation  of  a  lien  or  mortgage  to  secure  the  price.  The 
character  of  the  transaction  depends  upon  the  intention  of  the 
parties,  which  is  evidenced  in  most  cases  by  a  written  contract, 
and  which  is  not  determined  by  the  name  which  the  parties 
have  given  to  the  instrument,  but  is  to  be  gathered  from  all  its 
terms.*'  Thus  instrum.ents  in  the  form  of  leases,  and  so  des- 
ignated, and  providing  that  the  so-called  lessee  shall  become 
the  owner  of  the  thing  leased  upon  payment  of  stipulated  in- 
stallments of  rent,  usually  equivalent  to  the  value  of  the  thing, 
which  the  lessee  agrees  to  pay,  and  reserving  the  right  on  the 
part'  of  the  lessor  upon  default  in  pa}-ment  to  resume  posses- 
sion, have  often  been  held  to  be  conditional  sales.**     And  in- 

7  8  See  Harkness  v.  Russell,  IIS  U.  S.  6'33,  7  Sup.  Ct  51,  30  L.  Ed. 
285. 

T»  Ante,  p.  8. 

80  Ante,  p.  9. 

«i  Post  p.  140.   See  20  Harv.  Lavr  Rer.  371-372,  37S-^S0. 

In  some  jurisdictions  conditional  sales  are  held  to  be  subject  to  the 
provisions  of  a  statute  requiring  chattel  mortgages  to  be  filed  or  re- 
corded. Hervey  v.  Loc-omotive  Works,  y3  U.  S.  Gt>l,  23  L.  Ed.  1003 : 
In  re  Ducker,  134  Fed.  43,  67  C.  C.  A.  117  (Kentucky  law);  Clark  v. 
Bright  30  Colo.  199.  69  Pac.  506. 

s:  See,  Harkness  v.  Russell,  supra;  Xichols  v.  Ashton,  155  Mass.  205. 
29  X.  E.  519:  W.  W.  Kimball  Co.  v.  Mellon.  SO  Wis.  1.3-3,  4S  X.  W. 
1110:  Gilbert  v.  Cash  Register  Co.,  176  111.  288.  52  X.  E.  22;  Freed 
Furniture  &  Carpet  Co.  v.  Sorensen,  28  Utah.  419,  79  Pac.  5&4,  107 
Am.  St.  Rep.  731. 

83  Herryford  v.  Davis.  102  U.  S.  235.  26  L.  Ed.  160;  Hughes  t.  Har- 
1am,  166  N.  T.  427,  60  N.  E.  22. 

84  Hervey  v.  Locomotive  Works.  93  U.  S.  664.  23  L.  Ed.  1003;   Sing- 


^  44)  RESERVATION'    OF    RIGHT   OF   POSSESSION.  135 

struments  in  the  form  of  leases  have  been  held  to  be  sales  with 
a  reservation  of  lien  or  mortgage  back  to  secure  the  price, 
where  the  intention  was  manifest  that  the  property  should 
pass  with  such  reservation."  And.  on  the  other  hand,  the  same 
construction  has  been  placed  in  some  cases  upon  instruments 
in  the  form  of  conditional  sales,  where  such  ijj  substance  ap- 
peared to  be  the  transaction  contemplated." 

Effect  of  Conditional  Sale. 

Under  a  conditional  sale,  notwithstanding  the  delivery  of 
possession,  the  property  does  not  pass  to  the  buyer  until  the 
condition  of  payment  is  performed.'^  And,  where  the  question 
is  unaffected  by  statute,  the  buyer  cannot  pass  title  to  others, 
either  to  his  attaching  creditor  *'  or  to  bona  fide  purchasers." 


er  Mfg.  Co.  ▼.  CJole,  4  Lea  (Tenn.)  439,  40  Am.  Rep.  20;  Loomis  v. 
Bragg.  50  Conn.  22S,  47  Am.  Rep.  63S;  Hays  v.  Jordan.  So  Ga.  741, 
n  S.  E.  S33,  9  L.  R.  A.  373:  Gerrish  v.  Clark.  04  N.  H.  492,  13  Atl. 
870;  Cowan  v.  Manufacturing  Co..  92  Tenn.  376.  21  S.  W.  G63;  Qulnn 
V.  Machinery  Co..  5  Wash.  270.  31  Pac.  SG6;  Campbell  v.  Atherton,  92 
Me.  »K  42  Atl.  232;  Lundy  Furniture  Co.  v.  White.  128  Cal.  170,  60 
Pac.  7r>9,  79  Am.  St.  Rep.  41:  Wilcox  v.  Cherry.  123  N.  C.  79.  31  S.  E. 
369:  Smith  t.  Aldrich,  ISO  Mass.  367,  62  N.  E.  381 ;  Unitype  Oo.  t. 
Long.  143  Fed.  315.  74  C.  C.  A.  4.".3. 

86  Herryford  v.  Davis.  102  U.  S.  235.  26  L.  Ed.  1»jO.  See.  also.  Pal- 
mer v.  Howard.  72  Cal.  293.  13  Pac  S5S.  1  Am.  St  Rep.  60:  Singer 
Mfg.  Co.  V.  Smith.  40  S.  O.  529.  19  S.  E.  132.  42  Am.  St  Rep.  897.  Cf. 
Murch  V.  Wright  46  111.  487,  95  Am.  Dec.  455. 

8«  Chicago  Railway  Equipment  Co.  v.  Bank.  136  U.  S.  268.  10  Sup. 
Ct  990,  34  L.  Ed.  349;  Baldwin  v.  Crow.  S6  Ky.  679,  7  S.  W.  146;  A. 
H.  Andrews  &  Co.  v.  Bank.  20  Colo.  313.  36  Pac  902;  O.  Aultman 
&.  Co.  v.  Silha,  85  Wis.  359.  55  N.  W.  711. 

87  Ex  parte  Crawcour.  9  Ch.  DIv.  419;  Campbell  Printing  Press 
&  Mfg.  Co.  V.  Walker.  114  N.  Y.  7.  20  N.  E.  625:  Briggs  v.  McEwen. 
77  Iowa.  303.  42  N.  W.  3<T3 ;  Cincinnati  Safe  Oo.  v.  Kelly.  54  Ark. 
476.  16  S.  W.  263;  Bunday  v.  Machine  Co.,  143  Mich.  10.  106  N.  W. 
397.  5  L.  R.  A.  (N.  S.)  475. 

If  a  note  is  given  in  conditional  payment,  the  property  does  not 
pass.  Segrist  v.  Crabtree.  131  U.  S.  287,  9  Sup.  Ct  687.  33  L.  Ed.  125; 
Trlplett  V.  Implement  Co.,  68  Ark.  230,  57  S.  W.  261.  82  Am.  St  Rep. 
2S4. 

S8  Hussey  v.  Thornton,  4  Mass.  405.  3  Am.  Dec  224;  Forbes  v. 
Marsh.  15  Conn.  384:  Mack  v.  Story.  57  Conn.  407.  18  Atl.  707;  Arm- 
ington  V.  Houston.  38  Vt  448.  91  Am.  Dec.  366;  Rogers  v.  Whitehouse. 

•    >-    note  S9  on  following  page. 


136     EFFECT  OF  CONTRACT  IN  PASSING  PROPERTY    (Ch.  3 

"The  vendee  in  such  cases,"  said  the  court  in  a  leading  case/" 
"acquires  no  property  in  the  goods.  He  is  only  a  bailee  for  a 
specific  purpose.  The  delivery  which  in  ordinary  cases  passes 
the  title  to  the  vendee  must  take  effect  according  to  the  agree- 
ment of  the  parties,  and  can  operate  to  vest  the  property  only 
when  the  contingency  contemplated  by  the  contract  arises.  The 
vendee,  therefore,  in  such  cases,  having  no  title  to  the  prop- 
erty, can  pass  none  to  others.  He  has  only  a  bare  right  of  pos- 
session; and  those  who  claim  under  him,  either  as  creditors  or 
purchasers,  can  acquire  no  higher  or  better  title.  Such  is  the 
necessary  result  of  carrying  into  effect  the  intention  of  the 

71  Me.  222;  Strong  v.  Taylor,  2  Hill  (N.  Y.)  326 ;  Herring  v.  Hoppock, 
15  N.  Y.  409;  Cole  v.  Mann,  62  N.  Y.  1;  Goodell  v.  Fail-brother,  12 
R.  I.  233,  34  Am.  Rep.  631;  Call  v.  Seymour,  40  Ohio  St.  670;  Dewes 
Brewei-y  Co.  v.  Merritt,  82  Mich.  198,  46  N.  W.  379,  9  L.  R.  A.  270; 
City  Nat.  Bank  v.  Tufts,  63  Tex.  113;  Nichols  v.  Ashtou,  155  Mass. 
205,  29  N.  E.  519 ;  Cleveland  Mach.  Works  v.  Lang,  67  N.  H.  348,  31 
Atl.  20,  68  Am.  St.  Rep.  675;  Rodgers  v.  Bachman,  109  Cal.  552,  42 
Pac.  448. 

8  9  Harkness  v.  Russell,  118  U.  S.  663,  7  Sup.  Ct.  51,  30  L.  Ed.  285; 
Zuchtmann  v.  Roberts,  109  Mass.  53,  12  Am.  Rep.  663;  Ballard  v. 
Burgett,  40  N.  Y.  314  (cf.  Comer  v.  Cunningham,  77  N.  Y.  391,  33  Am. 
Rep.  626) ;  Weeks  v.  Pike,  60  N.  H.  447 ;  Sanders  v.  Keber,  28  Ohio 
St.  630;  Sumner  v.  Cottey,  71  Mo.  121;  Fairbanks  v.  Eureka  Co., 
67  Ala.  109 ;  Sumner  v.  Woods,  67  Ala.  139,  42  Am.  Rep.  104 ;  Mc- 
Comb  V.  Donald's  Adm'r,  82  Va.  903,  5  S.  E.  558;  Standard  Imple- 
ment Co.  V.  Parlin  &  OrendorfC  Co.,  51  Kan.  544,  33  Pac.  360 ;  Mar- 
vin Safe  Co.  V.  Norton,  48  N.  J.  Law,  410,  7  Atl.  418,  57  Am.  Rep. 
566 ;  Baals  v.  Stewart,  109  Ind.  371,  9  N.  E.  403 ;  Gill  v.  De  Armant, 
90  Mich.  425,  51  N.  W.  527 ;  Lansing  Iron  &  Engine  Works  v.  Wil- 
bur, 111  Mich.  413,  69  N.  W.  667;  Ensley  Lumber  Co.  v.  Lewis,  121 
Ala.  94,  25  South.  729 ;  Triplett  v.  Implement  Co.,  68  Ark.  230,  57  S. 
W.  261,  82  Am.  St.  Rep.  284;  Lorain  Steel  Co.  v.  Railway  Co.,  187 
Mass.  500,  73  N.  E.  646;  Freed  Furniture  &  Carpet  Co.  v.  Sorensen, 
28  Utah,  419,  79  Pac.  564,  107  Am.  St.  Rep.  731 ;  Studebaker  Bros.  Co. 
V.  Man,  13  Wyo.  358,  80  Pac.  151,  110  Am.  St.  Rep.  1001;  Id.,  14 
Wyo.  68,  82  Pac.  2. 

It  is  otherwise  where  the  buyer  is  expressly  or  impliedly  authoriz- 
ed to  sell.  Winchester  Mfg.  Co.  v.  Carman,  109  Ind.  31.  9  N.  E.  707, 
58  Am.  Rep.  382 ;  Spooner  v.  Cummings,  151  Mass.  313,  23  N.  E.  839 ; 
Columbus  Buggy  Co.  v.  Turley,  73  Miss.  529,  19  South.  232,  32  L.  R. 
A.  260,  55  Am.  St.  Rep.  550. 

The  seller  may  by  his  acts  be  estopped  from  asserting  title.  Mis- 
sissippi River  Logging  Co.  v.  Miller,  109  Wis.  77,  85  N.  W.  193. 

80  Coggill  V.  Railroad  Co.,  3  Gray  (Mass.)  &45,  per  Bigelow,  J. 


§  44)  KKSKKVATION    OF    KICHT   OF    POSSKSSION.  I'M 

fiartics  to  a  conditional  sale  and  delivery.  Any  other  rule 
would  be  equal  to  a  denial  of  tlie  validity  of  such  contracts. 
But  they  certainly  violate  no  rule  of  law,  nor  are  they  contrary 
to  sound  policy."  In  several  states,  however,  a  different  view 
of  the  policy  of  the  law  is  entertained,  and  it  is  held  that  if  the 
seller  delivers  the  goods  to  the  buyer,  so  as  to  clothe  him  with 
apparent  ownership,  a  bona  fide  purchaser  from  the  buyer  or 
his  execution  creditor  is  entitled  to  protection  as  against  the 
claim  of  the  seller.®^  In  many  states,  among  them  some  in 
which  the  validity  of  conditional  sales  as  against  creditors  and 
purchasers  had  been  sustained  by  the  courts,  statutes  regulating 
conditional  sales  have  been  passed.  These  statutes  usually 
provide  that  the  contract  shall  be  void  as  against  purchasers 
and  creditors  unless  in  w-riting  and  filed  or  recorded  like  a 
chattel  mortgage."- 

But,  although  the  property  does  not  pass,  the  buyer  acquires 
a  defeasible  interest,  which  before  breach  of  condition  he  may 

91  Murdi  V.  Wrigbt,  40  111.  4S7,  9.")  Am.  Dec.  453;  Vaucliizor  v.  Al- 
len. 00  111.  499;  Ilervey  v.  Locomotive  Works,  93  U.  S.  GG4,  23  L.  Ed. 
1(K)3  (involving  the  Illinois  rule) ;  Lincoln  v.  Qnynn.  08  Md.  299,  11 
Atl.  848,  G  Am.  St.  Rep.  440  (bona  fide  purchaser  protected.  Cf.  Cen- 
tral Trust  Co.  v.  Manufacturing  Co.,  77  Md.  202,  2G  Atl.  493) ;  Greer 
v.  Church,  13  Bush  (Ky.)  430;  In  re  Ducker,  134  Fed.  43,  67  C.  C 
A.  117  (Kentucky  law). 

In  Pennsylvania  a  distinction  is  drawn  between  a  conditional  sale 
and  a  bailment  with  an  option  to  purchase  during  the  bailment  or 
at  its  termination.  In  tlie  latter  case  it  is  held,  as  in  other  jurisdic- 
tions, that  the  ownership  of  the  bailor  is  protected  against  creditors 
of  the  bailee  and  purchasers  from  him.  Rowe  v.  Sharp,  51  Pa.  2G ; 
Goss  Printing  Co.  v.  Jordan,  171  Pa.  474,  32  Atl.  1031.  But  in  the 
case  of  a  conditional  sale  it  is  held,  anomalously,  that  delivery  to 
the  buyer  subjects  the  goods  to  execution  at  the  suit  of  his  creditors 
and  makes  it  transferable  to  bona  fide  purchasers  from  him.  Ilaak  v. 
Linderman,  04  Pa.  499,  3  Am.  Rep.  012;  Ott  v.  Sweatman,  IGG  Pa. 
217,  31  Atl.  102. 

In  Colorado  it  seems  that  creditors  without  notice  and  bona  flde 
purchasers  from  the  buyer  are  protected.  Jones  v.  Clark,  20  Colo. 
353.  38  Pac.  371. 

0-  Such  a  statute  has  been  held  not  to  apply  to  a  conditional  do- 
livery  imder  a  cash  sale.  Freeman  v.  Kraemer,  03  Minn.  242,  05  N. 
W.  45.j;  Ilirsch  v.  Lumber  Co.,  GO  N.  J.  Law,  .".09,  "..".  Atl.  04.'..  And 
see  Plymouth  Stove  Foundry  Co.  v.  Fee,  182  Mass.  31,  W  N.  E.  419. 


138     EFFECT  OF  CONTRACT  IN  PASSING  PROPERTY.   (Ch.  3 

sell  or  mortgage,®'  and  which  is  subject  to  attachment  by  his 
creditors,^*  and  which  upon  the  performance  of  the  condition 
becomes  perfect.  "The  vendee  acquires,  not  only  the  right  of 
possession  and  use,  but  the  right  to  become  the  absolute  own- 
er upon  complying  with  the  terms  of  the  contract.  These  are 
rights  of  which  no  act  of  the  vendor  can  divest  him,  and  which, 
in  the  absence  of  any  stipulation  in  the  contract  restraining 
him,  he  can  transfer  by  sale  or  mortgage.  Upon  performance 
of  the  condition  of  the  sale,  the  title  of  the  property  vests  in 
the  vendee,  or,  in  the  event  that  he  has  sold  or  mortgaged  it, 
in  his  vendee  or  mortgagee,  without  further  bill  of  sale."  ^'^ 
And,  like  other  bailees,  he  may  maintain  an  action  of  trover 
against  one  who  wrongfully  invades  his  possession.®^  The 
seller  also  may  sell  or  mortgage  his  interest  in  the  goods  or  in 
the  contract,  and  it  may  be  attached  by  his  creditors.®^ 

Remedies  of  Seller  under  Conditional  Sale. 

Upon  default  in  payment  or  in  performance  of  any  other 
condition  of  the  contract,  the  right  of  possession  revests  in 


93  Day  V.  Bassett,  102  Mass.  445 ;  Chase  v.  Ingalls,  122  Mass.  381 ; 
Carpenter  v.  Scott,  13  R.  I.  477;  Nutting  v.  Nutting,  63  N.  H.  221. 
See  Winchester  v.  King,  46  Mich.  102,  8  N.  W.  722;  Sunny  South 
Lumber  Co.  v.  Lumber  Co.,  63  Ark.  268,  38  S.  W.  902;  Albright  v. 
Meredith,  58  Ohio  St.  194,  50  N.  E.  719. 

»*  Newhall  v.  Kingsbury,  131  Mass.  445;  Denny  v.  Eddy,  22  Pick. 
(Mass.)  535 ;  Hurd  v.  Fleming,  34  Vt.  169 ;  Hervey  v.  Diamond,  67  N. 
H.  342,  39  Atl.  331,  68  Am.  St.  Rep.  673.  Contra :  Keck  v.  State. 
12  Ind.  App.  119,  39  N.  E.  899.  But  the  seller  may  retain  the  right 
to  possession  notwathstanding  delivery.  Nichols  v.  Ashton,  155  Mass. 
205,  29  N.  E.  519. 

»5  Carpenter  v.  Scott,  supra. 

96  Harrington  v.  King,  121  Mass.  209;  Lord  v.  Buchanan,  69  Vt. 
320,  37  Atl.  1048,  60  Am.  St.  Rep.  933.  Cf.  Smith  v.  Gufford,  36 
Fla.  481,  18  South.  717,  51  Am.  St.  Rep.  37. 

9  7  Burnell  v.  Marvin,  44  Vt.  277;  Everett  v.  Hall,  67  Me.  497; 
McMillan  v.  Larned,  41  Mich.  521,  2  N.  W.  662 ;  Ross-jNIeehan  Brake- 
Shoe  Co.  V.  Ice  Co.,  72  Miss.  608,  18  South.  364 ;  Laudigan  v.  Mayer, 
32  Or.  245,  51  Pac.  649,  67  Am.  St.  Rep.  521 ;  Standard  Steam  Laundry 
V.  Dole,  22  Utah,  311,  61  Pac.  1103;  Spoon  v.  Frambach,  83  Minn. 
301,  86  N.  W.  106;  Bank  of  Little  Rock  v.  Collins,  66  Ark.  240,  50 
S.  W.  694 ;  Nye  v.  Daniels,  75  Vt.  81,  53  Atl.  1-50 ;  Cutting  v.  Whitte- 
more,  72  N.  H.  107,  54  Atl.  1098 ;  Barton  v.  Groseclose,  11  Idaho,  227, 
81  Pac.  623. 


>?  44)  RESERVATION    OF    RIGHT    OF   POSSESSION.  13'J 

the  seller,^*  and  lie  may  retake  the  goods  or  maintain  an  ac- 
tion of  replevin  to  recover  them."®  By  his  mere  default,  how- 
ever, the  buyer  does  not  forfeit  his  rights  under  the  contract, 
for  before  possession  is  retaken  the  buyer  may  still  pay  the 
price  and  retain  the  goods. ^°°  And  the  seller  may  waive  the 
default, ^^^  as  by  allowing  the  buyer  to  remain  in  possession 
and  extending  the  time  of  performance,  or  accepting  part  pay- 
ment of  the  price;  and  if  he  docs  so  he  cannot  resume  posses- 
sion without  demand  for  performance  and  refusal  by  the  buyer 
to  comply  with  it.^*** 

In  a  conditional  sale,  since  the  price  is  payable  irrespective 
of  the  transfer  of  the  property,  the  seller  may  maintain  an 
action  for  the  price,  although  the  property  has  not  passed.^**' 
But,  if  he  brings  an  action  for  the  price,  it  is  generally  held 
that  he  has  elected  to  treat  the  sale  as  absolute,  and  that  he 


88  Hubbard  v.  Bliss,  12  Allen  (Mass.)  590. 

89  11111  V.  Freeman,  3  Cusb.  (Mass.)  257;  Salomon  v.  Hathaway. 
126  Mass.  482 ;  Hughes  v.  Kelly,  40  Conn.  148 ;  Stone  v.  Perry,  60 
Me.  48;  Whitney  v.  McCkjnnell,  29  Mich.  12;  Wiggins  v.  Snow.  89 
Mich.  47G,  50  N.  W^  991;  Proctor  v.  Tilton,  65  N.  H.  3,  17  Atl.  638; 
Richardson  Drug  Co.  v.  Teasdall,  52  Neb.  698,  72  N.  W.  1028;  Wil- 
merdlng  v.  Furniture  Co.,  122  Ga.  312,  50  S.  E.  100;  Worthlngton  v. 
A.  G.  Rhodes  &  Son  Co.,  145  Ala.  6.^6,  39  South.  614;  National  Cash 
Register  Co.  v.  Petsas  (TV'ash.)  86  Pac.  662. 

Some  cases  require  a  demand.  New  Home  Sewing-Mach.  Co.  v. 
Bothane,  70  Mich.  443.  38  N.  W.  326;  Nattin  v.  Riley,  54  Ark.  30,  14 
S.  W.  1100. 

100  Vaughn  v.  McFayden,  110  Mich.  234,  08  N.  W.  135;  Nattin  v. 
Riley,  supra. 

After  default  by  the  buyer,  and  demand  of  possession  and  tender 
back  of  unpaid  notes  by  the  seller,  the  buyer  can  no  longer  assign  his 
interest     Lippincott  v.  Rich,  19  Utah,  140,  56  Pac.  806. 

101  Cole  V.  nines,  81  Md.  476.  32  Atl.  19(;,  32  L.  R.  A,  455. 

102  Hutchings  v.  Munger,  41  N.  Y.  155;  O'Rourke  v.  Hadcock,  114 
N.  Y.  541.  22  X.  E.  3:'.;  Peoples  Furniture  &  Carpet  Co.  v.  Crosby. 
57  Neb.  282,  77  N.  W.  658,  73  Am.  St.  Rep.  504 ;  Mosby  v.  Goff,  21  R. 
I.  494,  44  Atl.  930 ;  Cable  Co.  v.  Wasegizig,  130  Mich.  387.  90  N.  W. 
24. 

108  Smith  V.  Aldrich.  ISO  Mass.  367,  62  N.  E.  381.  He  may  sue  for 
each  Installment  as  It  falls  due.  Gray  v.  Booth,  64  App.  Dlv.  231,  71 
N.  Y.  Supp.  1015.  See  Sales  Act,  §  63  (2) ;  20  Hai-v.  Law  Rev.  378- 
381  ;    post,  p.   346. 


140  EFFECT  OF  CONTRACT  IN   PASSING   PUOPERTY.       (Ch.  3 

cannot  afterwards  reclaim  the  goods. ^''*  On  principle,  how- 
ever, it  seems  that  the  maintenance  of  an  action  for  the  price 
is  not  inconsistent  with  the  retention  of  the  property  in  the 
seller,  since  by  the  terms  of  the  contract  the  property  is  to  re- 
main in  him  until  the  price  is  paid,  and  the  reservation  of  the 
property  is  for  the  very  purpose  of  securing  payment,  and 
that  the  seller  should  be  allowed  to  sue  for  the  price  and  also 
to  reclaim  the  goods  to  make  them  available  as  security ;  and 
some  cases  so  hold.^""  Conversely,  it  is  generally  held  that,  if 
the  seller  reclaims  the  goods,  he  cannot  afterwards  sue  for  the 
price;  ^°®  but  on  principle  the  mere  resumption  of  possession  is 
not  inconsistent  with  the  exercise  of  the  right  under  the  con- 
tract to  recover  the  price,  and  some  cases  so  hold.^°''    It  is  gen- 

104  Bailey  v.  Hervey,  135  Mass.  172;  Whitney  v.  Abbott,  191  Mass. 
59,  77  N.  E.  524 ;  Crompton  v.  Beach,  62  Conn.  25.  25  Atl.  446,  IS  L. 
R.  A.  187,  36  Am.  St.  Rep.  323;  Button  v.  Trader,  75  Mich.  295,  42 
N.  W.  834 ;  Richards  v.  Schreiber,  Couchar  &  Westphal  Ck).,  98  Iowa. 
422,  67  N.  W.  569;  Holt  Mfg.  Co.  v.  Ewin?,  109  Cal.  353,  42  Rae.  435; 
Smith  V.  Barber,  153  Ind.  322,  53  N.  E.  1014 ;  Orcutt  v,  Rickenbrodt. 
42  App.  Div.  238,  59  N.  Y.  Supp.  1008 ;  Aldou  v.  W.  J.  Dyer  &  Bro.,  92 
Minn.  134,  99  N.  W.  784;  Dowagiac  Mfg.  Co.  v.  Mahon,  13  N.  D.  516, 
101  N.  W.  903 ;    Butler  v.  Dodson,  78  Ark.  569.  94  S.  W.  703. 

105  Campbell  Printing  Press  &  Mfg.  Co.  v.  Publishing  Co.,  56  N.  J. 
Law,  676,  29  Atl.  681,  44  Am.  St.  Rep.  410;  Jones  v.  Snider,  99  Ga. 
276,  25  S.  E.  668;  Thoniason  v.  Lewis,  103  Ala.  426,  15  South.  830; 
B.  E.  Forbes  Piano  Co.  v.  Wilson,  144  Ala.  586,  39  South.  645. 

If  the  seller  attaches  or  levies  on  execution  upon  the  goods,  this  is 
a  recognition  of  the  buyer's  ownership,  and  an  election.  Tanner  & 
De  Laney  Engine  Co.  v.  Hall,  89  Ala.  630,  7  South.  187;  Fuller  v. 
Fames,  108  xUa.  404,  19  South.  366;  Albright  v.  Meredith,  58  Ohio 
St.  194,  50  N.  E.  719. 

So  if  the  seller  attempts  to  establish  a  materialman's  lien.  Hick- 
man V.  Richburg,  122  Ala.  638,  26  South.  136.  Cf.  Warner  Elevator 
Mfg.  Co.  V.  Loan  Ass'n,  127  Mich.  323,  86  N.  W.  828,  89  Am.  St. 
Rep.  473 ;  Bierce  v.  Ilutchins,  205  U.  S.  340,  27  Sup.  Ct.  524,  51  L. 
Ed.  828  (April  8,  1907).     See  20  Harv.  Law  Rep.  371,  372. 

IOC  Seanor  v.  McLaughlin,  165  Pa.  150,  30  Atl.  717,  32  L.  R.  A.  467; 
Earle  v.  Robinson,  91  ITun,  363,  36  N.  Y.  Supp.  178,  affirmed  157  N. 
Y.  683.  51  N.  E.  1090;  White  v.  A.  W.  Gray's  Sons,  96  App.  Div.  154, 
89  N.  Y.  Supp.  481  ;  Perkins  v.  Grobben,  116  Mich.  172,  74  N.  W.  469, 
39  L.  R.  A.  815,  72  Am.  St.  Rep.  512 ;  C.  Aultman  &  Co.  v.  Olson.  43 
Minn.  409,  45  N.  W.  852;  Keystone  Mfg.  Co.  v.  Cassellius,  74  Minn. 
115,  76  N.  W.  1028. 

107  Tufts  V.  D'Arcambal,  85  Mich.  185,  48  N.  W.  497,  12  L.  R.  A. 


§44)  RESERVATION    OF    KIOIIT   OF    POSSESSION.  Ill 

crally  held  that  the  seller  need  not,  in  an  action  apfaiu-i  u,. 
buyer  or  a  purchaser  from  him  to  recover  the  value  of  the  goods 
upon  their  conversion,  allow  for  partial  j)aynicnts,*°®  or,  in  re- 
plevin, refund  the  same,^°'  and  that,  although  the  seller  re- 
claims the  goods,  the  buyer  cannot  recover  for  installments 
paid.""  But  some  courts  refuse  to  enforce  the  harsh  rule  of 
forfeiture  of  the  installments  paid,'"  and  other  courts,  upon 
equitable  principles,  where  the  court  has  equitable  powers,  re- 
quire the  seller  to  account  for  payments  received."^  In  some 
states  the  matter  is  regulated  by  statute."' 
Risk  of  Loss. 

As  a  rule  the  risk  of  loss  attaches  to  the  ownership  of  the 
goods,^^*  and  unless  otherwise  agreed  they  remain  at  the 
>cllcr"s  risk  until  the  property  in  them  is  transferred  to  the 
buyer,  so  that,  if  they  are  destroyed  or  injured  before  the  trans- 
fer, he  cannot  recover  the  price  ;^^''    but  when  the  property 

446,  24  Am.  St.  Rep.  79;  Dederlck  v.  Wolfe,  68  Miss.  500.  9  South. 
:;.".0,  24  Am.  St.  Rep,  28:1;  MePIiorson  v.  Lumber  Co.,  70  Miss.  049,  12 
Soutli.  8.j7  ;  MeCormick  Ilarvestiug  Madi.  Co.  v.  Kocli,  8  Old.  374,  58 
Pac.  626.     ^Vnd  see  Tufts  v.  P>race,  103  Wis.  341,  79  N.  W.  414. 

108  Angler  v.  Manufacturing  Co.,  1  Gray  (Mass.)  621,  61  Am.  Dec. 
t.'.n ;  Morgan  v.  Kidder,  55  Vt.  307 ;  Hawkins  v  Hersey,  80  Mo.  394. 
.".0  Atl.  14;  Lorain  Steel  Co.  v.  Railway  Co.,  187  Mass.  500,  73  X.  E. 
640.     But  see  Johnston  v.  Whittemore,  27  Mich.  4C;j. 

looDnke  v.  Sliackleford,  56  Miss.  552;  Fleck  v.  Warner,  25  Kan. 
492.  If  the  buyer  has  equities  by  reason  of  installments  paid,  they 
cannot  be  asserted  in  replevin  brought  by  the  seller  after  condition 
l.roken.  Thirlby  v.  Rainbow,  93  Mich.  164,  53  X.  W.  159;  Ryan  v. 
Wayson,  108  Mich.  519,  00  X.  W.  370. 

no  Latham  v.  Summer,  89  111.  233.  31  Am.  Rep.  79  (but  see  Singer 
Mfg.  Co.  V.  Ellington.  103  111.  App.  517) ;  White  v.  Oakes,  88  Me.  307, 
34  Atl.   175,  32  L.  R.  A.  592. 

111  Shafer  v.  Russell.  28  Utah,  4-14,  79  Pac.  5.-9. 

112  nine  v.  Roberts.  48  Conn.  207.  40  Am.  Rep.  170;  Guilford  v. 
McKinley.  01  Ga.  230;  Snook  v.  Ra-lan.  89  Ga.  251.  15  S.  E.  361: 
A.  D.  Puffer  &  Sons  Mfg.  Co.  v.  Lucas,  112  X.  C.  377.  17  S.  E.  174. 
19  L.  R.  A.  0S2. 

113  Weil  V.  State.  40  Ohio  St.  450.  21  X.  E.  043;  Whitelaw  Furni- 
ture Co.  V.  Boon.  102  Tenn.  719,  52  S.  W.  155;  Mattcsou  v.  Milling 
Co.,  143  Cal.  430.  77  Pac.  144. 

11*  See  Martineau  v.  Kitching,  L.  R.  7  Q.  B.  430,  per  Blackburn. 
J. ;  9  Ilarv.  Law  Rev.  106. 

115  Kein  v.  Tuppor,  52  X.  Y.  550;    T.iiiL'liain  v.  Eggleston,  27  Mich. 


142  EFFECT  OF  CONTRACT  IN   PASSING   PROPERTT.      (Ch.  3 

is  transferred  they  are  the  buyer's  risk,  whether  delivery  has 
been  made  or  not.^^°  So  goods  delivered  on  approval  are  at 
the  seller's  risk,^^^  while  goods  delivered  on  sale  or  return 
are  at  the  risk  of  the  buyer.^^^  The  parties  may,  however,  fix 
the  risk  by  agreement. ^^^ 

Where  goods  are  delivered  upon  a  conditional  sale,  the 
property  being  reserved  in  the  seller,  many  cases  hold,  in  ac- 
cordance with  the  general  rule,  that  the  goods  remain  at  the 
seller's  risk,  and  that,  if  they  are  lost  or  injured  without  the 
buyer's  fault  before  payment,  the  buyer  is  not  bound  to  pay  the 
price.^^*^  Upon  a  conditional  sale,  however,  the  buyer  ordinar- 
ily receives  all  the  incidents  of  ownership  except  the  title,  the 
transaction  being  analogous  to  an  absolute  sale  with  a  mort- 
gage back  to  secure  the  price;  ^^^  and  many  cases  therefore 
hold  that  the  goods  are  at  the  risk  of  the  buyer,  who  has  the 
beneficial  interest. ^^^  In  accordance  with  this  view,  which  is 
supported  by  the  weight  of  authority,  the  proposed  Sales  Act 
provides:    "Where  delivery  of  the  goods  has  been  made  to 

324 ;  Drews  v.  Logging  Co.,  53  Minn.  199,  .54  N.  W.  1110 ;  Towne  v. 
Davis,  66  N.  H.  396,  22  Atl.  450;  Porter  v.  Bridgers,  132  N.  C.  92, 
43  S.  E.  551. 

If  the  buyer  has  paid  the  price,  and  the  goods  are  destroyed,  he 
may  recover  it.  Joyce  v.  Adams,  8  N.  Y.  291 ;  Slade  v.  Lee,  94  Mich. 
127.  53  N.  W.  929 ;    Stone  v.  Waite,  88  Ala.  599,  7  South.  117. 

116  Terry  v.  Wheeler,  25  N.  Y.  520;  Bill  v.  Fuller,  146  Cal.  50,  79 
Pac.  592:  ante,  p.  123.     See  Sales  Act  §  22. 

117  Elphick  V.  Bame?.  5  C.  P.  Div.  321 ;  post,  p.  144. 

118  Carter  v.  Wallace,  32  Hun  (N.  Y.)  384;  Jacob  Strauss  Saddlery 
Co.  V.  Kingman,  42  Mo.  App.  208;  Foley  v.  Felrath,  98  Ala.  176,  13 
South.  485,  39  Am.  St.  Rep.  39 ;   post,  p.  145. 

iisMartineau  v.  Kitching,  L.  R.  7  Q.  B.  436;  Inglis  v.  Stock,  10 
App.  Cas.  263. 

120  Handle  v.  Stone  &  Co.,  77  Ga.  501;  Glisson  v.  Heggie,  105  Ga. 
30.  31  S.  E.  118;  Swallow  v.  Emery,  111  Mass.  355;  Wolf  v.  Di 
Lorenzo,  21  Misc.  Rep.  .521,  47  N.  Y.  Supp.  719;  J.  M.  Arthur  &  Co. 
V.  Blackman  (C.  C.)  63  Fed.  536 ;  Bishop  v.  Minderhout,  128  Ala.  162, 
29  South.  11,  52  L.  R.  A.  395,  86  Am.  St.  Rep.  134 ;  American  Soda 
Fountain  Co.  v.  Blue,  146  Ala.  682,  40  South.  218. 

121  Ante.  p.  134. 

122  Tufts  V.  Griffin,  107  N.  C.  49,  12  S.  E.  08,  10  L.  R.  A.  526,  22 
Am.  St.  Rep.  863;  Burnley  v.  Tufts,  66  Miss.  49,  5  South.  627,  14 
Am.  St.  Rep.  540 ;  Tufts  v.  Wynne,  45  Mo.  App.  42 ;  Osbom  v.  Lum- 
ber Co.,  91  Wis.  526,  65  N.  W.  184 ;   American  Soda  Fountain  Co.  v. 


§  45)  SALE    ON    APrUOVAL   OR    THIAL.  1  J.*. 

the  buyer,  or  to  a  bailee  for  the  buyer,  in  pursuance  of  the 
contract,  and  the  property  in  the  goods  has  been  retained  by 
the  seller  merely  to  secure  performance  by  the  buyer  of  his 
oblig-ations  under  the  contract,  the  goods  are  at  the  buyer's 
risk  from  the  time  of  such  delivery."  ^^^ 


SALE    ON    APPROVAL    OR    TRIAL. 

45.  'When  goods  are  delivered  to  tlie  buyer  on  approval,  or 
on  trial,  or  on  satisfaction,  or  other  similar  terms,  un- 
less a  different  intention  appears,  the  property  there- 
in passes  to  the  buyer— 

(a)  'When  he  signifies  his  approval  or  acceptance  to  the  sel- 

ler, or  does  any  other  act  adopting  the  transaction. 

(b)  If  he  does  not  signify  his  approval  or  acceptance  to  the 

seller,  but  retains  the  goo<ls  without  giving  notice  of 
rejection,  then,  if  a  time  has  been  fixed  for  the  return 
of  the  goods,  on  the  expiration  of  such  time,  and,  if 
no  time  has  been  fixed,  on  the  expiration  of  a  reason- 
able time.  'What  is  a  reasonable  time  is  a  question 
of    fact. 12* 

Vauphn,  69  N.  J.  Law,  582,  55  Atl.  54;  La  Valley  v.  Ravenna,  78  Vt. 
152,  G2  Atl.  47,  2  L.  R.  A.  (N.  S.)  07,  112  Am.  St.  Rep.  898. 

In  La  Valley  v.  Ravenna,  supra,  the  court  said :  "The  defendant's 
promise  to  paj'  was  absolute,  and  was  made  upon  a  sufficient  con- 
sideration ;  for  he  got  just  what  he  bargained  for,  the  use,  possession, 
and  enjoyment  of  the  property,  with  the  rigiit  to  acquire  the  absolute 
title  upon  payment  of  the  stipulated  jirice,  and  this  was  the  considera- 
tion for  his  promise.  The  seller  had  done  all  that  he  was  to  do  to  or 
witli  the  property  by  the  terms  of  the  contract — all  tliat  he  was  to  do 
at  all,  excei)t  to  receive  the  price;  and  upon  that  the  title  passed, 
without  further  action  on  the  part  of  either  party.  The  defendant's 
I)romise  was  In  no  sense  conditioned  on  the  seller's  ability  to  deliver 
the  title.  He  could  not  return  the  property  to  the  seller,  and  thereby 
avoid  further  liability." 

123  Sales  Act.  §  22  (a).  Section  22  (b).  following  the  English  Sales 
-Vet,  §  20,  provides  also:  "Where  delivery  has  been  delayed  through 
the  fault  of  either  buyer  or  seller  the  goods  are  at  the  risk  of  the 
party  in  default  as  regards  any  loss  which  might  not  have  occurred 
but  for  such  default." 

12*  Sales  Act,  §  19,   rule  3  (2). 


144  EFFECT   OF   CONTRACT  IN   PASSING   PROPERTY.       (Ch.  3 


SAIiE   OR   RETURN. 

46«  When,  goods  are  delivered  to  tlie  bnyer  "on  sale  or  re- 
turn," or  on  other  terms  indicating  an  intention  to 
make  a  present  sale,  but  to  give  the  buyer  an  option 
to  return  the  goods,  instead  of  paying  the  price,  un- 
less a  different  intention  appears,  the  property  passes 
to  the  buyer  on  delivery;  but  he  may  revest  the 
property  in  the  seller  by  returning  or  tendering  the 
goods  within  the  time  fixed  in  the  contract,  or,  if  no 
time  has  been  fixed,  ivithin  a  reasonable  time.125 

Sale  on  Approval. 

Conditions  postponing  the  transfer  of  the  property  may  ex- 
ist for  the  benefit  of  the  buyer  as  well  as  of  the  seller.  In- 
stances of  such  conditions  are  afforded  in  sales  "on  trial,"  or 
"on  approval,"  or  "on  satisfaction."  ^^^  Such  a  transaction 
amounts  to  a  bailment,  with  the  right  in  the  buyer  to  convert 
the  bailment  into  a  sale,  at  his  option. ^^'^  In  such  cases  there 
is  no  sale  until  the  buyer  signifies  to  the  seller  his  approval 
or  acceptance,  or  does  some  act  adopting  the  transaction  as  a 
sale.^^^  If  he  does  not  signify  his  approval  or  acceptance,  but 
retains  the  goods  without  giving  notice  of  rejection,  it  is  gen- 
erally held  that  the  property  passes  on  the  expiration  of  the 
time  limited  for  trial,^^"  or,  if  no  time  is  limited,  on  the  expira- 

125  Sales  Act,  §  19,  rule  3  (1). 
12  6  Post.  p.  2.34. 

127  Ante,  p.  8. 

128  Swain  v.  Shepherd,  1  Moody  &  R.  223;  Elphick  v.  Barnes,  5  C. 
P.  Div.  321,  326 ;  Hunt  v.  Wyman,  100  Mass.  198 ;  Whitehead  v.  Van- 
derbilt,  10  Daly  (N.  Y.)  214;  Pitts'  Sons  Mfg.  Co.  v.  Poor,  7  111.  App. 
24 ;  Mowbray  v.  Cady,  40  Iowa,  604 ;  Pierce  v.  Cooley,  56  Mich.  552, 
23  N.  W.  310 ;  Glasscock  v.  Hazell,  109  N,  C.  145,  13  S.  E.  789 ;  Da- 
vis Gasoline  Engine  Works  Co.  v.  McHugh,  115  Iowa,  415,  88  N.  W. 
948;  In  re  George  M.  Hill  Co.,  123  Fed.  866,  59  C.  C.  A.  354.'  See, 
also,  O'Donnell  v.  Wing  &  Son,  121  Ga.  717,  49  S.  E.  720. 

129  Humphries  v.  Carvalho,  16  East,  45;  Elphick  v.  Barnes,  5  C. 
P.  Div.  321 ;  Waters  Heater  Co.  v.  Mansfield,  48  Vt.  378 ;  Butler  v. 
School  Dist,  149  Pa.  351,  24  Atl.  308;  Spickler  v.  Marsh,  36  Md.  222; 
Delamater  v.  Chappell,  48  Md.  244,  253 ;  Prairie  Farmer  Co.  v.  Tay- 
lor, 69  111.  440,  18  Ajn.  Bep.  621;  Aultman  v.  Theirer,  34  Iowa,  272; 
Columbia  Eolliug-Mill  Co.  v.  Machine  Co.,  55  N.  J.  Law,  391,  26  Atl. 
888 ;   Turner  v.  Foundry  Co.,  97  Mich.  166,  56  N.  W.  356 ;   Grabfelder 


§  4G)  SALE    OK    RETUUN.  143 

tion  of  a  reasonable  111110/'°  although  some  cases  hold  that 
failure  to  return  is  merely  evidence  of  intention  on  the  buyer's 
part  to  exercise  his  right  to  purchase/'^ 

Sale  or  Return. 

A  bailment  with  an  option  in  the  bailee  to  buy  is.  however, 
essentially  dilTerent  from  a  sale  with  the  right  of  return.  It 
is.  of  course,  competent  for  the  parties  to  agree  that  the  prop- 
erty in  the  goods  shall  pass  to  the  buyer  on  delivery,  and  that, 
if  he  does  not  approve  of  the  goods,  he  may  return  them.  In 
the  latter  case  the  transaction  is  a  sale  defeasible  on  the  ful- 
fillment of  a  condition  subsequent/ ^^  The  property  vests  in 
the  buyer,  and,  upon  the  exercise  of  his  right  of  return,  it  re- 
vests in  the  seller.  To  have  this  effect,  the  option  must  be  ex- 
ercised within  the  time  fixed, "^  or.  if  no  time  be  fixed,  within 
a  reasonable  time.^'*  In  case  the  buyer  disables  himself  from 
performing,  the  sale  becomes  absolute.^'"  The  difficulty  lies 
in  ascertaining  the  intention,  and  different  constructions  would 
probably   be  placed   upon  the  same  transaction  by   different 

V.  Vosburgb,  90  App.  Dlv.  307,  S."  N.  Y.  Snpp.  033.  A  sale  on  condi- 
tion that  the  buyer  may  return  on  a  certain  contingency  becomes  ab- 
solute If  he  (lisable.s  himself  from  performing  the  condition  by  mort- 
gaging the  goods.  Lynch  v.  Willford  (Minn.)  59  N.  W.  311.  Using  a 
harvesting  machine  for  a  day  after  deciding  to  return  it  was  a  waiver 
of  the  right  to  return.  Palmer  v.  Banfield,  8G  Wis.  441,  50  N.  W. 
1090. 

180  Moss  V.  Sweet,  10  Q.  B.  49.'',.  20  Law  J.  Q.  B.  107:  Dewey  v.  Erie 
Borough,  14  Pa.  211.  fiS  Am.  Dec.  533;  S.  C.  Forsaith  Mach.  Co.  v. 
.Mengel.  99  Mich.  2S0,  58  N.  W.  30.'j. 

131  Hunt  V.  Wynian.  100  Ma.ss.  19S,  per  Well.s,  J.;  Knbn  v.  Kla- 
bunde,  50  Wis.  235.  G  N.  W.  8S8.  See  Stiirm  v.  Boker.  150  U.  S.  312. 
331,  14  Sup.  Ct.  99,  37  L.  Ed.  1093;  Springfield  Engine  Stop  Co.  v. 
Sharp.  1.S4  Mass.  200.  OS  N.  E.  224. 

132  Kay  V.  Thompson.  12  Cush.  (Mass.)  281.  59  Am.  Dec.  187;  SchU^ 
singer  v.  Stratton,  9  R.  1.  578.  580;  Hotchiciss  v.  Iliggins.  52  Conn. 
205,  52  Am.  Rep.  582;  Robinson  v.  Fairbanks,  81  Ala.  1.32.  1  South. 
552;  Wind  v.  Her,  93  Iowa,  310.  01  N.  W.  1001,  27  L.  R.  A.  219;  Gay 
V.  Dare.  103  Cal.  454,  37  Pac.  400;  Weles  v.  McNerney,  74  Conn.  075. 
51  Atl.  1004.  Cf.  Head  v.  Tattersall.  L.  R.  7  Exch.  7;  Sturm  v.  Boker. 
1.".0  U.  S.  312.  14  Sup.  Ct.  99.  37  L.  Ed.  1093. 

133  Stevens  v.  Hertzler,  114  Ala.  .".03.  22  South.  121. 

134  House  V.  Beak.  141  111.  290,  30  N.  E.  1005,  33  Am.  SL  Rep.  307. 

135  Ray  V.  Thompson,  supra. 
Tiff.Sai,es(2d  Ed.)— 10 


146     EFFECT  OF  CONTRACT  IN  PASSING  PROPERTT.   (Ch.  3 

courts.^  ^'  Thus,  in  several  cases  where  goods  were  delivered 
to  the  buyer  upon  his  agreement  to  return  them  on  a  specified 
day,  or  else  to  pay  for  them,  the  transaction  has  been  con- 
strued as  an  executed  sale  with  the  right  of  return;  ^^^  but  it 
is  perhaps  open  to  doubt  whether  it  would  not  be  more  in  ac- 
cordance with  the  intention  of  the  parties  to  construe  such  a 
transaction  as  a  bailment  with  the  right  to  purchase.  The 
terms  "sale  on  trial,"  "sale  on  approval,"  and  "sale  or  return" 
are  often  used  without  much  distinction;  ^^^  but  the  term  "sale 
or  return"  is  in  this  country  often  confined  to  sales  defeasible 
upon  the  return  of  the  goods,  in  distinction  to  the  terms  "sale 
on  trial"  and  "sale  on  approval,"  which  are  confined  to  cases 
in  which  the  approval  of  the  buyer  is  a  condition  precedent 
to  the  transfer  of  the  property;  ^^'  and  the  distinction  is  a  con- 
venient one. 


186  Ray  V.  Thompson,  12  Gush.  (Mass.)  281,  59  Am.  Dec.  187. 

137  Dearborn  v.  Turner,  16  Me.  17,  33  Am.  Dec.  630;  Buswell  v. 
Bicknell,  17  Me.  344,  35  Am.  Dec.  262;  Crocker  v.  Gullifer,  44  Me. 
491,  494,  69  Am.  Dec.  118;  McKinney  v.  Bradlee,  117  Mass.  321; 
Martin  v.  Adams,  104  Mass.  262. 

138  Of.  Moss  V.  Sweet,  16  Q.  B.  493,  20  Law  J.  Q.  B.  167;  Meldrum 
V.  Snow,  9  Pick.  (Mass.)  441,  20  Am.  Dec.  489 ;  Kahn  v.  Klabunde,  50 
Wis.  235,  238,  6  N.  W.  888;  Spickler  v.  Marsh,  36  Md.  222;  Benj. 
Sales,  §  595. 

The  English  Sale  of  Goods  Act,  §  18,  rule  4,  does  not  make  the 
distinction.    See  Chalmers,  Sale  of  Goods  Act  (6th  Ed.)  50. 

188  Cf.  Schlesinger  v.  Stratton,  9  R.  I.  578,  580;  Hotchkiss  v.  Hlg- 
gius,  52  Conn.  205,  52  Am.  Rep.  582 ;  Robinson  v.  Fairbanks,  81  Ala. 
132,  1  South.  552;  Benj.  Sales  (Bennett's  6th  Am.  Ed.)  pp.  568,  569; 
Id.  (Corbin's  Ed.)  p.  796,  note  30. 


§§  47-46)     EFJTECT  OF  CONTRACT  IN  PASSING  PliOFKUTY.         147 


CHAPTER  rV. 

EFFECT  OF  THE  CONTRACT  IN  PASSING  THE  PROPERTY 
(Continued)— SALE  OF  GOODS  NOT  SPECIFIC. 

47-48.    In  General. 

4^50.     Subsequent  Appropriation. 

51-53.    Reservation  of  Right  of  Possession  or  Property. 


IN   GEXZRAIi. 

47.  NO  PROPERTY  PASSES  UNTIL  GOODS  ARE  ASCER- 

TAINED. 'Where  there  is  a  contract  for  the  sale  of 
unascertained  goods,  no  property  in  the  goods  is  trans- 
ferred to  the  buyer  unless  and  until  the  goods  are  as- 
certained; but  property  in  an  undivided  share  of  as- 
certained goods  niay  be  transferred  as  stated  in  the 
follovring   section.  1 

48.  UNDIVIDED  SHARES.      (1)    There  may  be  a  contract  to 

sell  or  a  sale  of  an  undivided  share  of  goods.  If  the 
parties  intend  to  efPect  a  present  sale,  the  buyer,  by 
force  of  the  agreement,  becomes  an  ovpuer  in  common 
\idth  the  oxmer  or  oumers  of  the  remaining  shares. 

(2)  UNIFORM  MASS.  In  some  jurisdictions,  but  not  in  all, 
there  may  be  a  sale  of  an  undivided  share  of  a  specific 
mass  of  goods  of  uniform  character,  though  the  seller 
purports  to  sell  and  the  buyer  to  buy  a  definite  num- 
ber, xreight  or  measure  of  the  goods  in  the  mass,  and 
though  the  number,  vreight  or  measure  of  the  goods 
in  the  mass  is  undetermined.  By  such  a  sale  the  buyer 
becomes  ovmer  in  common  of  such  a  share  of  the  mass 
as  the  number,  tireight  or  measure  bought  bears  to 
the  number,  weight  or  measure  of  the  mass.- 

The  rule  that  the  parties  must  be  agreed  on  the  specific 
goods  which  are  to  be  the  subject  of  the  sale  is  founded,  as 
Blackburn  says,  on  the  very  nature  of  things ;  for,  until  the 
parties  are  agreed  on  the  specific  goods,  the  contract  can  be  no 
more  than  a  contract  to  supply  goods  answering  a  particular 
description,  and  since  the  seller  would  fulfill  his  contract  by 

1  See  Sales  Act,  §  17.  a  See  Sales  Act,  §  6. 


148     EFFECT  OF  CONTRACT  IN  PASSING  PROPERTY.   (Ch.  4 

furnishing  any  goods  answering  the  description,  and  the  buyer 
could  not  object  to  them,  provided  they  answered  the  descrip- 
tion, it  is  clear  that  there  can  be  no  intention  to  transfer  the 
property  in  any  particular  goods.^ 

Where  Goods  are  Part  of  Specific  Stock. 

But,  where  the  goods  are  so  far  ascertained  that  the  parties 
have  agreed  to  take  them  from  a  particular  stock  owned  by 
the  seller,  a  different  question  may  arise.  If  the  goods  are 
part  of  a  specific  stock,  consisting  of  units  of  varying  quality  or 
value,  as  a  number  of  sheep  out  of  a  flock,  it  is  clear  that  a 
selection  must  take  place  before  the  property  in  any  particular 
units  can  pass.*  But  if  the  goods  are  part  of  a  uniform  mass, 
such  as  grain  or  oil  or  coal,  so  that  any  unit  is  the  equivalent 
of  any  other  unit,  it  is  possible  that  the  parties  may  intend 
that  the  property  in  an  undivided  share  shall  pass,  the  parties 
becoming  owners  in  common  of  the  mass ;  and  such  an  inten- 
tion may  be  inferable  although  the  contract  is  not  in  terms  for 
the  sale  of  an  undivided  interest,  as  a  half  or  a  third,  but 
where  it  is  for  the  sale  of  a  certain  number  of  bushels  or  gal- 
lons or  tons  of  the  mass  of  grain  or  oil  or  coal,  the  buyer  in 
such  case  to  become  owner  of  such  share  of  the  mass  as  the 
number  of  units  bought  bears  to  the  number  of  units  in  the 
mass. 

In  England  no  such  distinction  is  recognized,  and  the  general 
rule  is  applied,  even  though  the  mass  be  of  uniform  quality 
and  value. ^     But  in  the  United  States,  while  many  cases  main- 

3  Blackb.  Sales,  124;    Benj.  Sales,  352;   2  Kent,  Comm.  496. 

4  Hahn  v.  Fredericks,  30  Mich.  223,  18  Am.  Rep.  119 ;  Steaubli  v. 
Bank,  11  Wash.  42G,  39  Pac.  814;  Lighthouse  v.  Bank,  162  N.  Y. 
336,  56  N.  E.  738;  Wilson  v.  Salt  Co.,  50  App.  Div.  114,  63  N.  Y. 
Supp.  565;  Martin  Bros.  &  Co.  v.  Lesan,  129  Iowa,  573,  105  N.  W. 
996. 

5  Wallace  v.  Breeds,  13  East,  522;  Austen  v.  Craven,  4  Taunt.  644; 
White  V.  Wilks,  5  Taunt.  176;  Busk  v.  Davis,  2  Maule  &  S.  397; 
Shepley  v.  Davis,  5  Taunt.  617;  Gillett  v.  Hill,  2  Cromp.  &  M.  530; 
Gabarron  v.  Kreeft,  L.  R.  10  Exch.  274.  See  Sale  of  Goods  Act,  § 
16.  Whitehouse  v.  Frost,  12  East,  614,  may,  perhaps,  rest  upon  this 
distinction.  See  Busk  v.  Davis,  2  Maule  &  S.  397.  But  the  case 
has  been  much  questioned  in  England.  Benj.  Sales,  §  354.  It  is, 
however,  frequently  cited  as  an  authority  in  the  American  cases 
which  recognize  the  distinction. 


§§  47-48)  IN    GKNKKAL.  W.) 

tain  strictly  the  older  rule."  others  hold  that  if  the  sale  be  of 
a  certain  quantity,  by  weight  or  measure  or  count,  its  separa- 
tion from  a  spccilic.  uniform  mass  is  not  necessary  to  pass  the 
property,  when  the  intention  to  do  so  is  otherwise  manifeste<l/ 
Upon  the  question  of  intention,  the  payment  of  the  price,  and 
particularly  the  undertaking  of  the  seller  to  hold  as  bailee  of 

«  Woods  V.  McGco,  7  Ohio,  127,  pt  2,  30  Am,  Dec.  220  (but  see  New- 
hnll  V.  Laugdon,  [VJ  uhlo  St.  87.  48  Am.  Rep.  420);  Si-uddor  v.  Wors- 
ter,  11  Cusli.  (.Mass.)  .^)73;  Ropes  v.  Lane,  *J  AIIcmi  (.Mas.s.)  502;  Kee- 
ler  V.  Goodwin,  111  Mass.  400;  Messer  v.  Wooduian,  22  N.  II.  172, 
53  Am.  Dec.  241;  Reeder  v.  Macheu,  57  Md.  5(j;  Ferguson  v.  Bank, 
14  Bush  (Ky.)  5ri5;  Courtright  v.  Leonard,  11  Iowa,  32;  McLaugh- 
lin V.  Piatti.  27  Cal.  451;  Dunlap  v.  Berry,  4  Scam.  (111.)  327.  39  Am. 
Dec.  413;  Warton  v.  Strane.  82  Ala.  311,  8  South.  2;il;  Commercial 
Nat.  Bank  v.  Gillette,  90  Ind.  208,  40  Am.  Rep.  222;  Jeraulds  v. 
Brown.  (M  N.  H.  (i0(i,  15  Atl.  123;  New  England  Dressed  Meat  & 
Wool  Co.  V.  Worsted  Co.,  105  Mass.  328,  43  N.  E.  112,  52  Am.  St 
Rep.  510;  Conard  v.  Railroad  Co.,  214  Pa.  98,  03  Atl.  424.  See,  also. 
Colder  v.  Ogden,  15  Pa.  528.  53  Am.  Dec  018;  IlaUleman  v.  Dun- 
can, 51  Pa.  00;  Morrison  v,  Woodley,  84  111.  192.  Some  cases  cited 
as  authorities  on  this  point,  perhaps,  rest  on  the  ground  that  the 
mass  was  not  uniform.  Woods  v.  Mc(Jee,  supra;  Hutchinson  v. 
Flunter,  7  Pa.  140;  McLaughlin  v.  Piatti,  27  Cal.  451  (see  Horr  v. 
Barker,  8  Cal.  003;  Id.,  11  Cal.  393.  70  Am.  Dec.  791).  See  Stone 
V.  Peacock,  35  Me.  385.  388. 

^  Kimborly  v.  Patchln,  19  N.  Y.  330,  75  Am.  Dec.  334;  Russell  v. 
Carrington,  42  N.  Y.  118,  1  Am.  Rep.  498;  Pleasants  v.  Pendleton. 
0  Rand.  (Va.)  473.  IS  Am.  Dec.  720;  Ilurff  v.  Hires.  40  N.  .T.  Law. 
581,  29  Am.  Rep.  282;  Chapman  v.  Shopard,  39  Conn.  il3;  Waldron 
V.  Chase,  37  Me.  414,  59  Am.  Dec.  50  (but  see  Morrison  v,  Dingley.  (vl 
Me.  553);  Newhall  v.  T^uigdon.  39  Ohio  St.  87,  48  Am.  Rep.  420; 
Carpenter  v.  Graham.  42  Mich.  191,  3  N.  W.  974;  Young  v.  Miles.  20 
Wis.  015;  Ilorr  v.  Barker.  8  Cal.  003;  Id.,  11  Cal.  3'.)3.  70  Am.  Dec. 
791;  Kingman  v.  Ilolmquist,  30  Kan.  735,  14  Pac.  KiS,  59  Am.  Rep. 
(iOl;  Nash  v.  Brewster,  39  Minn.  530,  41  N.  W.  105,  2  L.  R.  A.  409; 
Mackellar  v.  Pillsbury,  48  Minn.  390.  51  N.  W.  222;  (barrels):  Phil- 
lips V.  Ocraulgee  Mills.  55  Ga.  (v?3;  Watts  v.  Hendry.  13  Kin.  523; 
Wagar  v.  Railroad  Co..  70  Mich.  048.  44  N.  W.  1113;  Welch  v. 
Spies.  103  Iowa,  389,  72  N.  W.  548;  O'Koefe  v.  Leistikow  (N.  D.)  104 
N,  W.  515.  Where  the  contract  was  for  "merchantable  brick."  to 
be  sorted  from  the  kiln  by  the  buyer,  the  title  did  not  pass;  It  being 
impossible  to  determine  either  what  brick,  or  what  relative  portion 
of  the  kiln,  were  sold.  Kimberly  v.  Patchin,  supra,  distinguished  «in 
the  gro\ind  that  it  did  not  appear  that  the  brick  were  uniform  and 
of  equal  value.  Anderson  v.  Crisp,  5  Wash.  178,  31  Pac.  038,  18  L. 
R,  A.  419. 


150     EFFECT  OF  CONTRACT  IN  PASSING  PROPERTY.   (Ch.  4 

the  buyer,  are  material ;  *  and  it  has  also  been  held  that  the  de- 
livery of  the  mass  to  the  buyer,  with  power  to  make  the  sep- 
aration, is  evidence  of  an  intention  to  pass  the  property.'  In 
some  cases  where  an  undivided  interest  was  held  to  have  pass- 
ed it  is  perhaps  doubtful  whether  such  intention  existed ;  ^° 
but  on  principle  there  is  no  reason  why  the  intention,  if  it 
exists,  should  not  be  given  effect,  and  the  doctrine  that  the 
property  may  pass  in  such  cases  without  separation  is  support- 
ed by  the  weight  of  authority  in  this  country.^  ^  The  doctrine 
has  also  been  applied  where  the  contract  was  to  sell  unascer- 
tained goods  and  the  seller  appropriated  to  the  contract  out  of 
a  larger  mass  the  specified  number  of  units.^^ 

Elevator  Cases. 

Analogous  to  the  cases  last  mentioned  are  the  so-called  "Ele- 
vator Cases,"  which  hold  that  grain  delivered  by  the  owners  at 

8  See  Foot  v.  Marsh,  51  N.  Y.  288. 

9  Page  V.  Carpenter,  10  N.  H.  77;  Lamprey  v.  Sargent,  58  N.  H. 
241;  Weld  v.  Cutler,  2  Gray  (Mass.)  195;  Croze  v.  Land  Co.,  143 
Mich.  514,  107  N.  W.  313,  114  Am.  St  Rep.  677.  But  see  Kimberly  v. 
Patchin,  19  N.  Y.  330,  75  Am.  Dec.  334,  per  Comstock,  J.,  comment- 
ing on  Crofoot  v.  Bennett,  2  N.  Y.  258. 

10  Pleasants  v.  Pendleton,  6  Rand.  (Va.)  473,  18  Am.  Dec.  726,  a 
leading  case,  of  which  it  was  observed  by  Grimke,  J.,  in  Woods  v. 
McGee,  7  Ohio,  127,  pt.  2,  30  Am.  Dec.  220,  that  "it  was  a  hard  case, 
and  hard  cases  make  shipwreck  of  principles." 

11  It  is  adopted  by  Sales  Act,  §  6.  See,  also,  sections  17,  76 
(fungible  goods). 

12  Where  defendants  ordered  400  hectolitres  of  nuts,  after  being  In- 
formed that  they  were  sold  in  bulk  by  hectolitres,  the  buyer  to  fur- 
nish bags  on  arrival  of  shipment,  and  on  arrival  of  steamer  received 
a  delivery  order  for  400  hectolitres  in  bulk  in  separate  hold,  and  on 
presentment  of  the  order  found  that  the  400  hectolitres  destined 
for  them  were  embraced  in  a  consignment  of  582  hectolitres  to  vari- 
ous consignees,  which  was  the  usual  method  of  shipment,  it  was  held, 
in  an  action  for  the  price,  that  the  delivery  on  board  vested  in  de- 
fendants' title  to  4,00/582  of  the  consignment,  and  that  the  tender 
of  the  582  hectolitres  for  defendants  to  take  their  share  was  a  suffi- 
cient delivery.  The  court  said:  "A  distinction  is  made  between  those 
cases  where  the  act  of  separation  is  burdensome  and  expensive,  or 
involves  selection,  and  those  where  the  article  is  uniform  in  bulk 
and  the  act  of  separation  throws  no  additional  burden  on  the  buyer. 
In  the  latter  class  of  cases  a  tender  of  too  much,  from  which  the 
buyer  is  to  take  the  proper  quantity,  is  a  good  delivery."  Brown- 
field  V.  Johnson,  128  Pa.  254,  18  Atl.  543,  6  L.  R.  A.  48.     Post,  p.  282. 


§M9-50)  SUBSEQUENT  APruOPRIATION.  l."l 

an  elevator,  and  stored  in  a  common  mass,  is  owned  by  tlic  de- 
positors as  tenants  in  common,  and  that  the  interest  of  any  one 
of  them  may  be  transferred  without  sei)aration.''  There  is, 
however,  in  the  Elevator  Cases,  this  essential  distinction :  that 
the  tenancy  in  common  is  created  by  the  original  deposit  and 
mixture  of  goods,  so  that  in  case  of  a  sale  by  one  owner  there 
can  be  no  question  that  the  intention  is  to  transfer  the  property 
in  an  undivided  interest 


SUBSEQUENT    APPROPRIATION. 

49.  IN   GENERAL.      "Where  there  is  a  contract  for  the   lale 

of  imascertalned  goods,  the  property  in  them  is  not 
transferred  nntil  there  has  been  an  appropriation  of 
the  goods  to  the  contract — that  is,  a  specification  or 
selection,  by  the  seller  x^ith  the  assent  of  the  buyer, 
or  by  the  buyer  \irith  the  assent  of  the  seller,  of  the 
goods  v^hich  are  to  be  the  subject-matter  of  the  sale; 
and  Mirhen  goods  are  so  appropriated  to  the  contract, 
with  the  intention  of  passing  the  property  in  them, 
the  property  is   transferred. 

50.  RULES  FOR  ASCERTAINING  INTENTION  AS  TO  TIME 

W^HEN  PROPERTY  IS  TO  PASS.  Unless  a  different 
intention  appears,  the  following  are  rules  for  ascer- 
taining the  intention  of  the  parties  as  to  the  time 
\ehen  the  property  in  the  goods  is  to  pass  to  the  buyer: 

(1)  Where   there  is   a  contract   to   sell  unascertained  or  fu- 

ture goods  by  description,  and  goods  of  that  descrip- 
tion and  in  a  deliverable  state  are  unconditionally 
appropriated  to  the  contract,  either  by  the  seller  xrith 
the  assent  of  the  buyer,  or  by  the  buyer  \iBith  the  as- 
sent of  the  seller,  the  property  in  the  goods  thereupon 
passes  to  the  buyer.  Such  assent  may  be  expressed  or 
implied,  and  may  be  given  either  before  or  after  the 
appropriation  is  made. 

(2)  'Where,    in   pursuance   of   a   contract   to    sell,    the    seller 

delivers  the  goods  to  the  buyer,  or  to  a  carrier  or  other 
bailee  (whether  named  by  the  buyer  or  not),  for  the 
purpose  of  transmission  to  or  a  holding  for  the  buyer, 

13  Gushing  v.  Breed,  14  Allen  (Mass.)  37G,  92  Am.  Dec.  777;  Kee- 
ler  V.  Goodwin.  Ill  Mass.  490;  Dole  v.  Olmstead,  3G  111.  150,  85 
Am.  Doc.  397;  Id.,  41  111.  344,  89  Am.  Dec.  3SG;  Waireu  v.  Mllliken, 
.j7  Me.  97.    Ante,  p.  7. 


152  EFFECT   OP   CONTRACT   IN   PASSING   PROPERTY.       (Ch.  4 

he  is  presumed  to  have  unconditionally  appropriated 
the  goods  to  the  contract,  except  in  the  cases  emhraced 
in  the  follo^ving  subsection  and  in  sections  51-53.  In 
many  jurisdictions  this  presumption  is  applicable, 
although  by  the  terms  of  the  contract  the  buyer  is 
to  pay  the  price  before  receiving  delivery  of  the  goods, 
and  the  goods  are  marked  ivith  the  wrords  "collect  on 
delivery,"  or  their  equivalents;  but  in  other  jurisn 
dictions  it  is  held  that  in  such  cases  the  property  does 
not  pass  until  delivery  to  the  buyer. 
(3)  If  a  contract  to  sell  requires  the  seller  to  deliver  the 
goods  to  the  buyer  or  at  a  particular  place,  the  prop- 
erty does  not  pass  until  the  goods  have  been  delivered 
to  the  buyer  or  have  reached  the  place  agreed  upon.i* 

Although  no  property  can  pass  until  the  goods  have  been 
ascertained,  it  does  not  necessarily  follow  that  because  they 
have  been  ascertained  the  property  passes.  The  transfer  of  the 
property,  in  such  case,  as  well  as  in  the  case  of  a  contract  for 
the  sale  of  goods  originally  specific,  depends  solely  on  the  in- 
tention of  the  parties,  and,  while  in  both  cases  the  presumption 
is  that  the  parties  intend  the  property  to  pass,^^  it  may  well 
happen  that,  though  they  subsequently  agree  upon  the  specific 
goods,  they  intend  that  the  property  shall  remain  in  the  seller 
until  the  performance  of  a  condition.  To  effect  a  transfer  of 
the  property,  it  is  necessary,  not  only  that  the  goods  be  ascer- 
tained, but  that  they  be  appropriated  to  the  contract  with 
the  intention  of  passing  the  property  in  them.  The  term  "ap- 
propriation to  the  contract,"  as  has  been  observed  by  Chalmers, 
J.,^^  is  unfortunate;  for  it  sometimes  means  simply  that  the 
goods  have  been  specified  as  the  subject-matter  of  the  contract, 
so  that  the  seller  would  break  it  by  delivering  any  other  goods, 
though  the  property  still  remains  in  him,  while,  on  the  other 
hand,  it  may,  and  usually  does,  mean  that  the  goods  have  been 
designated  with  the  intention  of  passing  the  property  in  them 
to  the  buyer — that  is,  finally  appropriated  to  the  contract,  so  as 
to  pass  the  property  in  them.^^ 

14  See  Sales  Act,  §  19,  rules  4  and  5. 
"Blackb.  Sales  (2(1  Ed.)  128. 
i«  Chalra.  Sale  of  Goods  Act  (6th  Ed.)  .51. 
IT  Wait  V.  Baker,  2  ELxch.  1,  8,  per  Parke.  B. 


^§  49-50)  SUBSEQUENT  APruoruiATioN.  153 

How  Effected. 

An  appropriation,  so  as  to  pass  tlic  property  in  the  poods, 
can  only  take  place  by  the  assent  of  both  parties,"*  but  the  as- 
sent may  be  implied  as  well  as  express;  *"  and  it  may  be  given 
by  either  party  after  *"  or  before  a  selection  by  the  other. 
When  the  goods  are  afterwards  selected  by  the  buyer  with 
the  assent  of  the  seller,  or,  if  selected  by  the  seller,  arc  approved 
by  the  buyer,  no  difficulty  arises."^  As  was  said  by  Holroyd, 
J.,  "The  selection  of  the  goods  by  the  one  party,  and  the  adop- 
tion of  the  act  by  the  other,  converts  that  which  was  before  a 
mere  agreement  to  sell  into  an  actual  sale,  and  the  property 
thereby  passes."  ^^ 

Appropriation  by  Act  of  Seller. 

"The  difficulty  arises  when  the  seller  makes  the  selection  pur- 
suant to  an  authority  derived  from  the  buyer ;  and  it  is  often 
a  nice  question  of  law  whether  the  acts  done  by  the  seller  mere- 
ly express  a  revocable  intention  to  appropriate  certain  goods 
to  the  contract,  or  whether  they  show  an  irrevocable  determina- 
tion of  a  right  of  election."  -''  Authority  to  make  the  appropria- 
tion is  generally  conferred  upon  the  seller  by  implication  upon 
the  ground  that  he  is  by  the  contract  authorized  or  required  to 
do  an  act  in  respect  to  the  goods  on  behalf  of  the  buyer  which, 
from  the  nature  of  the  act,  he  cannot  do  until  the  goods  are  ap- 
propriated.^*    Until  he  performs  the  act,  he  may  change  his 

18  Campbell  v.  Mersey  Docks  &  Harbour  Board,  14  C.  B.  (N.  S.) 
412,  per  Willes,  J.:  Godts  v.  Rose.  17  C.  B.  229.  per  Willos.  J.;  Jen- 
iioi-  V.  Smith,  L.  R.  4  C.  P.  270,  per  Brett,  J.;  Roeder  v.  Machen.  57 
Md.  ."jO;  Home  Ins.  Co.  v.  Heck,  G5  111.  Ill;  Andrews  v.  Cbeney,  G2 
N.  H.  404;  American  Hide  &  Leather  Co.  v.  Chalkley  &  Co.,  101  Va. 
458.  44  S.  E.  705. 

10  Campbell  v.  Board,  14  C.  B.  (N.  S.)  412,  per  Erie,  J.;  Alexander 
V.  Gardner,  1  Bing.  N.  C.  G71;  Sparkes  v.  Marshall,  2  Bing.  N.  C. 
761. 

20  Rohde  V.  Thwaites,  6  Barn.  &  C.  388. 

21  Benj.  Sales.  §  358. 

22  Rohde  V.  Thwaites,  G  Barn.  &  C.  388.  See,  also,  Hatch  v.  Oil 
Co..  100  U.  S.  124.  13G.  25  L.  Ed.  554;  Augustine  v.  McDowell,  120 
Iowa,  401.  04  N.  W.  919. 

2  3  Chalm.  Sale  of  Goods  Act  (Gth  Ed.)  50. 

24  Langd.  Cas.   Sales.  lOjS;    Smith  v.  Edwards,  156  Mass.  221,  30 


154  EFFECT   OF   CONTRACT   IN    PASSING    PROPERTY.       (Ch.  4 

mind  as  often  as  he  will  as  to  what  goods  he  will  select.,  for 
the  contract  gives  him  till  then  to  make  the  choice ;  but,  when 
once  he  has  performed  the  act,  his  election  is  determined,  and 
the  property  in  the  goods  passes  to  the  buyer.^'  Thus  where, 
by  the  contract,  the  seller  is  to  sell  a  certain  number  of  bar- 
rels of  flour,  and  to  load  them  into  the  wagon  or  vessel  of  the 
buyer,  who  is  to  fetch  them  away,  the  seller  has  implied  au- 
thority to  appropriate  the  goods,  and  he  may  select  any  goods 
he  pleases,  provided  they  conform  to  the  contract,  and  he  may 
select  first  one  lot,  and  then  another,  without  affecting  the 
property  in  them ;  but  when  once  he  loads  the  barrels  into  the 
buyer's  wagon  or  vessel  the  appropriation  is  final,  and,  unless 
he  reserves  the  property  in  the  goods,^®  the  property  passes. ^^ 
So  when  the  seller  is  to  deliver  the  goods  at  a  place  designated 
by  the  contract,  unless  a  dififerent  intention  appears,^®  the 
property  passes  upon  the  delivery. ^^    An  act  of  appropriation. 


N.  E.  1017,  per  Holmes,  J.;  Martz  v.  Putnam,  117  Ind.  392,  20  N.  E. 
270. 

Where  the  seller  is  authorized  to  do  such  an  act,  the  implication 
of  authority  is  not  overcome  by  the  fact  that  the  sale  is  by  sample; 
for  the  property  passes  only  provided  they  do  conform,  and  the 
right  to  refuse  the  goods  if  they  do  not  conform  to  the  description 
always  exists.  Kuppenheimer  v.  Wertheimer,  107  Mich.  77,  64  N. 
W.  952,  61  Am.  St.  Rep.  317;  Wadhams  &  Co.  v.  Balfour,  32  Or.  313. 
.51  Pac.  642.    But  see  Jenner  v.  Smith,  L.  R.  4  C.  P.  270. 

25Blackb.  Sales,  128;  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass. 
291,  295. 

2«  Post,  p.  162. 

2T  Benj.  Sales,  §  359;  Gill  v.  Benjamin,  64  Wis.  362,  25  N.  W.  445, 
54  Am.  Rep.  619  (to  be  delivered  over  the  rail  of  the  buyer's  vessel). 
A  foreign  merchant  contracted  for  several  cargoes  of  lumber,  to 
be  delivered,  seasoned,  f.  o.  b.  ship  in  the  A.  river,  within  seven 
months  of  May  1st;  certain  advances  to  be  made  before  June  1st. 
The  advances  were  made,  and  the  first  cargo  was  prepared  by 
August,  piled  by  itself,  and  the  buyer  notified.  The  buyer  had  dif- 
ficulty in  chartering  ships,  and  the  lumber  was  burned.  Held,  that 
the  title  had  not  passed.  Schreyer  v.  Lumber  Co.,  4  C.  C.  A.  547, 
54  Fed.  653. 

28  Cole  V.  Bryant,  73  Miss.  297,  18  South.  655. 

2  9  National  Bank  v.  Dayton,  102  U.  S.  59,  26  L.  Ed.  77;  Hyde  v. 
Lathrop,  2  Abb.  Dec.  436;  Claflin  v.  Railroad  Co.,  7  Allen  (Mass.) 
341;  Veazie  v.  Holmes,  40  Me.  69;  Bloyd  v.  Pollock,  27  W.  Va.  75; 
Sedgwick  v.  Cottingham,  54  Iowa,  512,  6  N.  W.  738;  Brigham  v.  Hib- 


§§  49-50)  SUIJSKQUENT   APl'lturKIATION.  155 

if  authorized,  is  sufficient  to  transfer  the  property,  even  though 
the  goods  remain  in  the  seller's  control.'"  The  authority  to 
make  the  appropriation  may,  however,  be  withdrawn  before 
it  is  exercised,  and  if  it  be  afterwards  acted  on  the  seller  can- 
not recover  the  price,  but  his  remedy  is  by  action  to  recover 
damages  for  non-acceptance.'* 

Appropriation   by   Delivery   to   Carrier. 

The  commonest  form  of  appropriation  by  act  of  the  seller 
is  by  the  delivery  of  the  goods  to  a  carrier  as  agent  for  the 
buyer.  Delivery  to  a  carrier  for  transmission  to  the  buyer, 
pursuant  to  the  contract,  is  an  appropriation  of  the  goods  to 
the  contract,  and  passes  the  property  in  them,  unless  by  the 
terms  of  the  contract  or  appropriation  the  seller  reserves  the 
right  of  property  in  them,  or  unless  he  is  to  deliver  them  to  the 
buyer  at  their  destination,  in  which  case  the  property  does  not 
pass  until  such  delivery.'-  Thus,  if  the  buyer  orders  goods  to 
be  sent  to  him  at  his  expense,  and  the  seller  delivers  goods 
conforming  to  the  contract  to  a  carrier  for  transmission  to  the 
buyer,  the  appropriation  is  complete  upon  such  delivery,  and  the 
property  passes,"   provided  that  the  seller  does  not  reserve 

liard.  2S  Or.  3S6,  43  Pac.  383;  Bayue  v.  Hard,  77  App.  Div.  251,  79 
N.  Y.  Supp.  208,  affirmed  174  N.  Y.  534.  GG  N.  E.  1104. 

30  Where  the  buyer  accepted  by  telegram  the  seller's  offer  to  sell 
bim  60  tubs  of  butter  of  a  specified  quality-  at  27  cents  per  pound,  anti 
they  immediately  set  apart  the  butter,  weighing  It  and  marking  It  as 
his,  and  sent  him  a  bill  marked  "cash  on  demand,"  the  appropriation 
was  authorized  and  passed  the  property.  Mitchell  v.  LeClalr,  165 
Mass.  308,  43  N.  E.  117.  See.  also,  Tift  v.  Wight  &  Weslosky  Co.,  113 
Ga.  681,  39  S.  E.  503.     Cf.  Andrews  v.  Cheney,  62  N.  II.  404. 

81  Unexcelled  Fireworks  Co.  v,  Polites,  130  Pa.  530,  IS  Atl.  1058,  17 
Am.  St.  Rep.  788. 

«2  Sales  Act,  §  19.  rules  4.  5. 

S3  Fragano  v.  Long.  4  Barn.  &  O.  219;  P.rowne  v.  Hare,  4  ITurl.  & 
N.  822,  29  Law  J.  Exch.  6 ;  afflrmiag  3  Hurl.  &  N.  484,  27  Law  J. 
Exch.  372 ;  Tregelles  v.  Sewell,  7  Hurl.  &  N.  574 ;  Calcutta  &  B.  S. 
Nav.  Co.  V.  De  Mattos,  32  Law  J.  Q.  B.  322,  328,  per  Blackburn,  J. ; 
Finch  V.  Mansfield,  97  Mass.  89;  Merchants'  Nat.  Bank  v.  Bangs, 
102  Mass.  291 ;  Odoll  v.  Railroad  Co.,  109  Mass.  .50 ;  Frank  v.  Iloey. 
128  Mass.  263;  Smith  v.  Edwards,  150  Masn.  221.  30  N.  E.  1017;  Tor- 
rey  v.  Corliss,  33  Me.  3.33;  Arnold  v.  Prout,  51  N.  H.  587:  Hobart  v. 
Llttlefield.  13  R.  I.  341;  Krulder  v.  Ellison,  47  N.  Y.  36.  7  Am.  Rep. 
402;    Bailey  v.   Railroad  Co.,  49  N.  Y.  70;    Pacific  Iron  Works  v. 


156  EFFECT   OF   CONTRACT   IN    PASSING   PROPERTY.       (Cll.  4 

the  property.^*  The  right  to  make  the  appropriation  springs 
from  the  authority  to  dcHver  to  the  carrier  as  agent  for  the 
buyer,  wihch  is  equivalent  to  deUvery  to  him  personally,  and 
such  authority  may  either  be  conferred  by  the  express  terms  of 
the  contract,  or  may  be  implied  from  the  course  of  trade.  If, 
however,  the  seller  is  to  deliver  to  the  buyer  at  the  place  of  des- 
tination, iniless  a  different  intention  appears,  delivery  to  the 
carrier  is  not  delivery  to  him  as  agent  of  the  buyer,  but  as 
agent  of  the  seller,  and  hence  does  not  pass  the  property.^ ^ 

Railroad  Co.,  62  N.  Y.  272;  Schmertz  y.  Dwyer,  53  Pa.  33.5;  Phila- 
delphia &  R.  Ry.  V.  Wireman,  88  Pa.  2G4 ;  Kelsea  v.  ^Manufacturings 
Co.,  55  N.  J.  Law,  320,  26  Atl.  907,  22  L.  R.  A.  415;  Magruder  v. 
Gage,  33  Md.  344,  3  Am.  Rep.  177 ;  Watkins  v.  Paine,  57  Ga.  50 ;  Pil- 
green  v.  State,  71  Ala.  368;  Diversy  v.  Kellogg,  44  111.  114.  92  Am. 
Dec.  1.54;  Ellis  v.  Roche.  73  111.  280;  Ranney  v.  Higby,  4  Wis.  1-54; 
Sarbecker  v.  State,  65  Wis.  171,  26  N.  W.  541,  56  Am.  Rep.  624 ;  Gar- 
retson  v.  Selby,  37  Iowa,  529,  18  Am.  Rep.  14;  Burton  v.  Baird,  44 
Ark.  556 ;  Dyer  r.  Railway  Co.,  51  Minn.  34.5,  53  N.  W.  714,  38  Am.  St. 
Rep.  506 ;  Wind  v.  Her,  93  Iowa,  316,  61  N.  W.  1001,  27  L.  R.  A.  219 ; 
Neimeyer  Lumber  Co.  v.  Railroad  Co.,  54  Neb.  321,  74  N.  W.  670,  40  L. 
R.  A.  534;  Mobile  Fruit  &  Trading  Co.  v.  McGuire,  81  Minn.  232.  83 
N.  W.  833 ;  Althouse  v.  McMillan,  1.32  Mich.  145,  92  N.  W.  941 ;  Sam- 
uel M.  Lawder  i<c  Sons  Co.  v.  Grocery  Co.,  97  Md.  1,  54  Atl.  634 ;  P.  .T. 
Bowlin  Liquor  Co.  v.  Beaudoin  (N.  D.)  108  N.  W.  545 ;  Lombard  Wa- 
ter-Wheel  Governor  Co.  v.  Paper  Co.,  101  Me.  114,  63  Atl.  555,  6  L. 
R.  A.   (N.  S.)  ISO. 

34  Post.  p.  162. 

3  5  Calcutta  &  B.  S.  Nav.  Co.  v.  De  Mattos,  32  Law  J.  Q.  B.  322, 
per  Blackburn,  J. ;  Dunlop  v.  Lambert,  6  Clark  &  F.  600,  per  Lord 
Cottenham ;  Suit  v.  Woodhall.  113  Mass.  391 ;  McNeal  v.  Braun,  .53 
N.  J.  Law,  617,  23  Atl.  687.  26  Am.  St.  Rep.  441 ;  Bloyd  v.  Pollock, 
27  W.  Va.  75 ;  Congar  v.  Railroad  Co.,  17  Wis.  477 ;  Rraddock  Glass 
Co.  V.  Irwin,  1.53  Pa.  440,  25  Atl.  490.  Some  cases  hold  that  it  is  not 
enough  to  overcome  the  presumption  that  the  property  passes  on  de- 
livery to  the  carrier.  Mee  v.  jNIcNider,  109  N.  Y.  500.  17  N.  E.  424; 
Neimeyer  Lumber  Co.  v.  Railroad  Co.,  54  Neb.  321,  74  N.  W.  670,  40 
L.  R.  A.  534.     Contra :     Devine  v.  Edwards,  101  111.  138. 

Sales  Act,  §  19,  rule  5,  provides :  "If  a  contract  to  soil  requires  the 
seller  to  deliver  the  goods  to  the  buyer,  or  at  a  particular  place,  or 
to  pay  the  freight  or  cost  of  transportation  to  the  buyer,  or  to  a  par- 
ticular place,  the  property  does  not  pass  until  the  goods  have  been 
delivered  to  the  buyer  or  reached  the  place  agreed  upon."  That  the 
seller  Is  to  pay  the  freight  is  evidence  of  an  intention  that  the  prop- 
erty does  not  pass  on  delivery  to  the  carrier.  Suit  v.  Woodhall,  113 
Mass.  391;    Berger  v.  State,  50  Ark.  20,  6  S.  W.  15;    McLaughlin  v. 


§§  49-50)  suBsiiyLKNT  Ai'i'iioruuTiON.  157 

Whether  delivery  to  the  carrier  in  pursuance  of  an  order  to 
that  ert'ect  from  tlie  buyer,  with  directions  to  collect  the  price 
on  delivery  to  the  buyer,  or,  as  the  transaction  is  usually  des- 
ignated, "shipment  C.  O.  D.,"  operates  as  a  transfer  of  the 
property  is  a  question  on  which  the  authorities  differ.  On  the 
one  hand,  it  is  held  that  in  such  a  case  the  carrier  is  the  seller's 
agent,  and  hence  that  the  property  docs  not  pass  until  de- 
livery by  the  carrier  to  the  buyer;  ^^  but  other  cases  hold  that 
the  condition  as  to  payment  is  intended  merely  to  reserve  the 

Marston,  78  Wis.  G70,  47  N.  W.  lOr.S;  Ilavoiis  v.  Fuel  Co.,  41  .\«"b. 
ins,  ."li)  N.  W.  G81  ;  Hunter  Bros.  Milling  Co.  v.  Kramer  Bros.,  71  Kan. 
408.  80  Pac.  0G3. 

F.  O.  B.  A  stipulation  that  the  seller  shall  deliver  the  goods 
"f.  o.  b." — that  is,  "free  on  board" — at  a  place  named  means  that  he 
is  to  pay  the  cost  of  transportation  to  that  place.  Shofhold  Furnace 
Co.  V.  Coke  Co.,  101  Ala.  440,  14  South.  072.  If  the  goods  are  to  be 
"f.  0.  b."  at  the  initial  point  of  transi)ortatiou,  the  seller  must  pay  the 
expenses  up  to  and  including  loading  on  board.  See  Sheffield  F^iinace 
Co.  V.  Coal  &  Coke  Co.,  supra  ;  Congdon  v.  Kendall,  53  Neb.  282,  73 
X.  W.  (n'y ;  Samuel  M.  Lawder  &  Sons  Co.  v.  Grocery  Co.,  07  Md. 
1,  54  Atl.  634 ;  Benj.  Sales  (5th  Eng.  Ed.)  083.  If  the  goods  are  to 
Ite  shipped  "f.  o.  b."  at  the  place  of  destination,  the  seller  is  to  pay 
the  freight  or  cost  of  transportation  to  that  place,  and,  unless  a  dif- 
ferent intention  appears,  the  property  will  not  pass  until  the  goods 
reach  their  destination.  Miller  v.  Seaman,  170  Pa.  201,  3.j  Atl.  l.'M ; 
Capehart  v.  Improvement  Co.,  103  Ala.  071,  10  South.  027,  40  Am. 
St.  Hep.  00;  Alabama  Nat.  Bank  v.  Parker  &  Co.,  140  Ala.  .513,  40 
South.  987;  Hunter  Bros.  Milling  Co.  v.  Kramer  Bros.,  71  Kan.  408, 
80  Pac.  903.  Cf.  Kuapp  Electrical  Works  v.  Wire  Co.,  157  111.  450, 
42  N.  E.  147. 

In  Neimoyer  Lumber  Co.  v.  Railroad  Co.,  54  Neb.  321,  74  N.  W.  670, 
40  L.  R.  A.  534,  it  was  held  that  "jirices  f.  o.  b.  Omaha"  did  not  mean 
that  tlie  delivery  should  take  place  at  Omaha.  As  to  the  meaning  of 
"f.  o.  b.  cars,"  see  Vogt  v.  Schienebeck,  122  Wis.  491,  100  N.  W.  820. 
67  L.  R.  A.  750.  100  Am.  St.  Rep.  989;  Davis  v.  Coment  Co.  (C.  C.)  134 
Fed.  274.  affirmed  142  Fed.  74,  73  C.  C.  A.  388;  Elliott  v.  Howison. 
140  Ala.  508.  40  South.  1018;  Hurst  v.  Manufacturing  Co.,  73  Kan. 
422.  85  Pac.  551.  0  L.  R.  A.  (N.  S.)  928. 

30  State  V.  O'Neil.  58  Vt.  140,  2  Atl.  580,  .50  Am.  Rep.  557  (sec.  also, 
dis.senting  opinion  of  Harlan.  J.,  in  O'Neil  v.  Vermont,  144  IT.  S.  323, 
12  Sup.  Ct.  093.  .30  L.  Ed.  450.  in  which  a  writ  of  error  was  dismissed 
on  the  ground  that  no  federal  question  was  involved) ;  Lane  v.  Chad- 
wick,  140  Mass.  08.  15  N.  E.  121  ;  Baker  v.  Bourcicault.  1  D.ily  (N. 
T.)  23:  U.  S.  V.  Shriver  (D.  C.)  23  Fed.  1.34;  Wagner  v.  llallack.  3 
Tolo.  170. 


158  EFFECT    OF   COKTF^CT   I>"    PASSING    PF.OPERTT.       (Ch.  -i 

seller's  lien  for  the  price,  and  rhat  the  deliver}-  of  the  goods  to 
the  carrier,  being  made  in  pursuance  of  the  instructions  of  the 
buyer,  passes  the  propert}-.^"  The  latter  view,  which  appears 
to  be  supported  by  the  weight  of  authorit)',  is  adopted  by  the 
proposed  Sales  Act." 

Other  Fornus  of  Appropriation  by  Act  of  Seller. 

Appropriation  by  the  act  of  the  seller  may  take  place  even 
before  the  goods  are  forwarded,  as  where  they  are  to  be  sent 
in  sacks  furnished  by  the  buyer.  Under  such  circumstances, 
unless  the  seller  reser\-es  the  propert)',  the  appropriation  is  com- 
plete, and  the  property  passes  as  soon  as  the  seller  puts  the 
goods  into  the  sacks." 

Another  common  form  of  appropriation  by  act  of  the  seller  is 
where,  in  pursuance  of  the  contract,  he  incorporates  his  own 
materials  with  the  propert\-  of  the  buyer,  as  where  a  carpenter 
is  employed  to  repair  a  chattel  or  to  erect  a  building  on  land  of 
his  employer.  As  soon  as  the  incorporation  takes  place,  the 
property'  in  the  materials  passes :  but  up  to  that  moment  the 
carpenter  has  the  right  to  use  any  materials  he  sees  fit,  and  the 
mere  fact  that  he  has  selected  materials  with  the  intention  of 
incorporating  them  confers  upon  the  employer  no  right  of  propn 
erty  in  them.** 

3T  Com.  V.  Fleming,  130  Pa.  13S.  18  Atl.  622,  5  L.  E.  A.  470.  17  Am. 
St  Rep.  763 :  Higgins  t.  Mnrray.  73  N.  T.  252.  semble :  State  t.  In- 
toxicating Liquors,  73  Me.  27S :  Pilgreen  v.  State.  71  Ala.  36S :  State 
T.  Carl.  43  Ark.  353,  .51  Am.  Rep.  -56-5 :  Hunter  v.  State,  55  Ark.  357, 
18  S.  W.  374 :  Norfolk  S.  R.  Co.  v.  Barnes.  104  N.  C.  25.  10  S.  R  S3. 
5  L.  R.  A.  611 ;  State  v.  Flanagon,  38  W.  Va.  53,  17  S.  E.  792.  22  L.  R. 
A.  430,  45  Am.  St.  Rep.  836 :  State  t.  Peters.  91  Me.  31.  39  Atl.  342 : 
James  v.  Commonwealth.  102  Kv.  108,  42  S.  W.  1107 :  City  of  Cartil- 
age V.  Dnvall.  202  III.  234.  66  N.  K  1099 :  Qty  of  Carthage  v.  Mtm- 
sell,  203  IIL  474,  67  N.  E.  S31;  Keller  v.  State  (Tes.  Cr.  App..  87  S. 
W.  669.  1  L.  R.  A,  (N.  S.)  489. 

«8  Sales  Act  5  19.  rule  4  (2). 

»»  Aldridge  v.  Johnson.  7  EL  &  BI.  &S5.  26  Law  J.  Q.  B.  296 ;  Lang- 
ton  T.  Higglns.  4  Htirl.  &  X.  402.  2S  Law  J.  Esch.  252.  In  Ogg  t. 
Shuter,  1  C.  P.  Dir.  47.  reversing  L,  R.  10  C.  P.  159.  it  was  held  that 
by  raking  a  bill  of  lading  to  his  own  order,  the  seller  reserved  the 
right  of  disposal,  notwithstanding  the  fact  that  he  had  put  the  goods 
in  the  buyer's  sa^iks. 

40  Tripp  V.  Armitage,  4  Mees.  &  W.  087 :  Wood  v.  Belt  6  El.  &  BL 
355,  affirming  5  El.  &  Bl.  772 :    Seath  v.  Mocre,  11  App.  Cas.  350.  381 ; 


§§  49-50)  SUBSEQUENT    AITKOPRIATION.  159 

Seller  must  Act  in  Conformity  zvith  Authority. 

Where  the  appropriation  is  to  be  made  by  the  seller,  no 
property  in  the  goods  selected  by  him  will  pass  unless  he 
exercises  his  authority  in  conformity  with  the  contract.  Thus 
no  property  will  pass  if  the  goods  do  not  conform  to  the  de- 
scription,*^ or  unless  he  ships  the  goods  within  the  time  speci- 
fied,*' or  in  the  manner  specified,*'  or  unless  he  delivers  to  the 
carrier  designated,  if  a  particular  carrier  be  designated  by 
the  contract,**  or  if  he  delivers  to  a  carrier  where  transmis- 
sion by  carrier  is  not  within  the  agreement.*'  Again,  no  prop- 
erty will  pass  if  he  sends  a  greater  quantity  of  goods  than  the 
buyer  has  ordered;  and  if  he  does  so  there  must  be  a  subse- 
quent acceptance  by  the  buyer,  in  order  to  pass  the  property.** 

Johnson  v.  Hunt,  11  Wend.  fN.  Y.)  13.5 ;  Wilkins  v.  Holmes,  5  Cnsh. 
(Mass.)  147;   Langd.  Cas.  Sales,  iceo. 

*i  Wait  V.  Baker,  2  Esch.  1,  per  Parke,  B.;  Vigers  v.  Sanderson 
(1901)  1  Q.  B.  608;  Gardner  v.  Lane,  12  Allen  Olass.)  39  (cf.  Id., 
9  Allen  [Mass.]  492,  85  Am.  Dec.  7T9;  Id.,  98  Mass.  517);  Wolf  v. 
Dietzsch,  75  111.  206;  Brown  v.  Berry,  14  N.  U.  459;  Aultman.  Miller 
&  Co.  V.  Clifford,  55  Minn.  159,  56  N.  W.  593.  43  Am.  St.  Rep.  478; 
New  England  Dressed  Meat  &  Wool  Co.  v.  Worsted  Co.,  1G5  Mass. 
328,  43  N.  E.  112,  52  Am.  St  Rep.  51G.  The  buyer  may  elect  to  keep 
the  goods.     Graff  v.  D.  M.  Osborne  Co.,  5G  Kan.  1G2,  42  Pac.  705. 

Where  a  tender  of  the  goods  under  such  an  appropriation  is 
rejected,  the  seller  may  within  the  contract  time  appropriate  other 
goods.    Borrowman  v.  Free,  4  Q.  B.  Div.  500. 

*2  Rommel  v.  Wingate,  103  Mass.  327.  Where  the  order  requires 
shipment  on  a  specified  day,  shipment  before  the  day  does  not 
pass  the  property.  Hoover  v.  Maher,  51  Minn.  269,  53  N.  W.  646; 
Crane  t.  Wilson,  105  Mich.  554,  63  N.  W.  506. 

The  buyer  may  waive  the  delay,  and  assent  to  the  subsequent 
appropriation.     Alexander  v.  Gardner.  2  Bing.  N.  C.  671. 

«3  Jones  V.  Schneider,  22  Minn.  279. 

**  Wheelhouse  v.  Parr,  141  Mass.  593,  6  N.  E.  787. 

4  5  Hague  V.  Porter,  3  Hill  (N.  Y.)  141. 

*«Cunliffe  v.  Harrison,  6  Exch.  903;  Downer  t.  Thompson,  2  Hill 
(N.  Y.)  137  Ccf.  Id.,  6  Hill  [N.  Y.]  208);  Rommel  v.  W^ingate,  103 
Mass.  327:  Barton  v.  Kane.  17  Wis.  38;  Bailey  v.  Smith,  43  N.  H. 
141;  Corastock  v.  Sanger,  51  Mich.  497,  16  N.  W.  872.  Where  earth- 
enware was  ordered,  and  additional  earthenware,  entirely  different, 
was  sent  in  the  same  crate,  held,  that  the  property  had  not  passed. 
Levy  V.  Green.  1  El.  &  El.  969,  28  Law  J.  Q.  B.  319.  Some  Amer- 
ican cases  hold  that  the  seller  "may  satisfy  the  contract  by  ten- 
dering a  greater  quantity,  from  which  the  buyer  may  select,  provld- 


IGO  EFFECT   OF    CONTRACT   IN    Px^SSING    PROPERTY.       (Ch.  4: 

So  if  the  quantity  of  goods  is  contracted  for  as  an  undivided 
whole,  as  a  cargo  or  a  boatful,  the  property  in  the  goods  will 
not  pass  until  the  whole  quantity  is  put  on  board,'* ^  even  though 
the  vessel  is  the  vessel  of  the  buyer.*^ 

Appropriation  by  Act  of  Buyer. 

Although  cases  in  which  authority  to  make  the  appropria- 
tion is  conferred  on  the  buyer  are  comparatively  rare,  the 
same  principle  applies  to  him  as  to  the  seller,  if  by  the  contract 
an  act  which  necessarily  determines  the  selection  is  to  be  per- 
formed by  the  buyer.  For  example,  suppose  that  by  the  con- 
tract the  seller  sells  out  of  a  stack  of  bricks  1,000,  to  be  selected 
by  the  buyer,  who  is  to  send  his  cart  and  fetch  them  away. 
Here  the  buyer  may  choose  first  one  part  of  the  stack,  and 
then  another,  until  he  has  done  the  act  determining  his  elec- 
tion ;  that  is,  until  he  has  put  the  bricks  into  his  cart.  When 
he  has  done  that,  his  election  is  determined,  and  he  cannot  put 
back  the  bricks  and  take  others  from  the  stack.*® 

Goods  Made  to  Order. 

Where  a  chattel  is  made  to  order  out  of  the  materials  of  the 
maker,  it  seems,  on  principle,  that  the  ordinary  rule  should 
apply ;  that  is,  that  unless  the  maker  is  authorized  or  required 
to  do  in  respect  to  it,  after  it  is  completed,  some  act  necessa- 
rily involving  its  appropriation  to  the  contract — for  example, 
to  forward  it  to  the  buyer — the  property  will  not  pass  tmtil  it 
is  accepted  by  him.^°    In  making  the  chattel,  as  in  procuring 

ed  the  mass  does  not  vary  in  quality."  Benj.  Sales  (Gorbin's  6tli 
Am.  Ed.)  §§  512,  531.  Tliis  is  said  to  be  a  sequence  from  Kimberly 
V.  Patcliin,  supra,  and  other  cases  holding  that  where  the  goods 
sold  are  part  of  a  specific  bulk,  of  uniform  character,  the  prop- 
erty in  an  undivided  part  may  be  transferred  without  separation. 
Ante,  p.  149;  post,  p.  282. 

4  7  Anderson  v.  Morice,  L.  R.  10  C.  P.  609,  affirmed  1  App.  Gas. 
713.     Gf.  Colonial  Ins.  Co.  v.  Insurance  Co.,  12  App.  Cas.  128. 

48  Rochester  &.  O.  Oil  Co.  v.  Hughey,  56  Pa.  322;  Hays  v.  Packet 
Co.  (D.  C.)  33  Fed.  552. 

49  Benj.  Sales,  §  359;  Valentine  v.  Brown,  18  Pick.  (Mass.)  549. 
Cf.  Inhabitants  of  AVestfield  v.  INIayo,  122  Mass.  100,  23  Am.  Rep. 
292. 

BO  Although  the  property  does  not  vest  in  the  buyer  on  completion, 
it  passes  upon  his  assent  to  its  appropriation  to  the  contract.  Wil- 
kins  V.  Bromhead,  0  Man.  &  G.  963. 


§§  49-50)  SUnsKQUENT   Ari'KOrillATION.  IGl 

p;oo(ls  in  any  other  way  to  fulfill  a  contract,  the  seller  is  act- 
ing for  himself,  and  not  for  the  buyer,  and  he  can  satisfy  his 
contract  equally  well  by  making  and  tendering  another  chattel 
within  the  stipulated  lime  as  by  tendering  the  chattel  first 
made.  This  view  has  been  sustained  in  England,  and  in  many 
of  the  courts  of  this  country;  '"^  but  in  others  it  is  held  that 
the  property  passes  as  soon  as  the  seller  finishes  the  chattel, 
and  sets  it  apart  for  the  buyer."^^ 

Chattel  to  be  Paid  for  in  Instalhiieiits  as  IVork  Progresses. 

In  shipbuilding  contracts,  where  it  is  provided  that  the  pay- 
ments shall  be  made  in  installments  at  particular  stages  in  the 
progress  of  the  work,  a  peculiar  rule  of  construction  has  been 
adopted  in  England,  by  which  the  parties  are  held,  by  implica- 
tion, to  have  evinced  an  intention  that  the  property  in  the  un- 
completed vessel  shall  pass  on  the  payment  of  the  first  in- 
stallment.'^'' It  follows  that,  as  new  materials  are  incorporated 
in  the  unfinished  vessel,  they  become  the  property  of  the  buyer. 
This  rule  of  construction  has  not  met  with  approval  in  the 
United  States,  and  it  is  generally  °*  held  that  the  intention  of 


Bi  Mucklow  V.  ManplcR,  1  Taunt.  318;  AtkinM)n  v.  Boll,  8  Barn. 
&  C.  277;  Moody  v.  Browu.  34  Me.  107,  50  Am.  Dec.  04<^;  Tufts 
V.  Grower,  83  Me.  407,  22  Atl.  382;  Shaw  v.  Smith,  48  C-onn.  306, 
40  Am.  Rep.  170;  llider  v.  Kolloy,  32  Vt.  208,  70  Am.  Doc.  176; 
Scudder  v.  Steamboat  Co..  1  Cliff.  (U.  S.)  370,  378.  Fed.  Cas.  No. 
12,r.(;5,  per  Clifford,  .T.;  Butterworth  v.  McKinly,  11  Humph.  (Teun.) 
20(;,  per  Totten,  J.;  Tiifts  v.  Lawrence,  77  Tex.  520,  14  S.  W.  165; 
Iloiser  v.  Moars,  120  N.  C.  443,  27  S.  E.  117;  Ilaynes  v.  Quay,  134 
Mich.  220,  95  N.  W.  1082.  See  Whitcomb  v.  Whitney,  24  Mich.  480; 
Pratt  V.  Bock,  70  Wis.  020.  30  N.  W.  410;  Langd.  Cas.  Sales,  1020. 
Such  cases  appear  to  fall  within  Sales  Act,  §  19,  rule  4.  being  "fu- 
ture goods."     See  Bonj.  Sales  (5th  Eng.  Ed.)  300.     Tost,  p.  348. 

62  Benient  v.  Smith,  15  Wend.  (X.  Y.)  40:>;  Ballontine  v.  Robinson, 
40  Pa.  177;  Shawhan  v.  Van  Nest,  25  Ohio  St.  490.  18  Am.  Rep.  313; 
Higgins  V.  Murray,  4  Tlun  (N.  Y.)  505;  Black  River  Lumber  Co.  v. 
Warner,  93  Mo.  374,  0  S.  W.  210.  See.  also.  West  Jersey  R.  Co.  v. 
Car-Works  Co.,  32  N.  J.  Law.  517;  Gordon  v.  Norris,  49  N.  IL  370; 
Fordice  v.  Gibson,  129  Ind.  7,  28  N.  E.  303.     Post.  p.  348. 

63  Woods  V.  Russell,  5  Barn.  &  Aid.  942;  Clarke  v.  Spence,  4 
Adol.  &  E.  448.  See.  also,  Seath  v.  Moore,  11  App.  Cas.  3.50.  .380; 
Reid  V.  MaoBeth  (1904)  App.  Cas.  223.  Cf.  Laidler  v.  Burlin.son, 
2  Mees.  &  W.  002. 

64  The  English  rule  was  followed  in  Scudder  v.  Sfc  nnlxiat  Co.,  1 

Tiff.Sales(2d  Ed.)— 11 


162     EFFECT  OF  CONTRACT  IN  PASSING  PROPERTT.   (Ch.  4 

the  parties  as  to  the  time  when  the  property  is  to  be  transferred 
is  to  be  determined,  as  in  other  cases,  from  the  terms  of  the 
contract  and  the  circumstances  of  the  transaction.^^  There- 
fore, unless  a  contrary  intention  appears,  the  ordinary  rule  will 
prevail — that  no  property  passes  before  the  chattel  is  com- 
pleted." 


RESERVATION   OF   RIGHT  OF  POSSESSION   OR  PROP- 
ERTY. 

51.  IN   GENERAIi.      When  there   is   a   contract   for  the   sale 

of  nnascertained  goods,  and  goods  are  subsequently 
appropriated  to  the  contract,  the  seller  may,  by  the 
terms  of  the  appropriation,  reserve  the  right  of  pos- 
session or  property  in  the  goods  until  certain  condi- 
tions have  been  fulfilled.  The  right  of  possession  or 
property  may  be  thus  reserved  notivithstanding  the 
delivery  of  the  goods  to  the  buyer,  or  to  a  carrier  or 
other  bailee  for  the  purpose  of  transmission  to  the 
buyer.  * 

52.  BY  BII/L   OF  LADING.      "Where   goods   are   shipped,   and 

by  the  bill  of  lading  the  goods  are  deliverable  to  the 
seller  or  his  agent,  or  to  the  order  of  the  seller  or 
his  agent,  the  seller  printa  facie  reserves  the  proper- 
ty in  the  goods;  but  xrhere  by  the  bill  of  lading  the 
goods  are  deliverable  to  the  buyer  or  his  agent,  or  to 
the  order  of  the  buyer  or  his  agent,  prima  facie  the 
property  in  the  goods  passes  to  the  buyer. 

53.  DEALING  WITH  BILL  OF  LADING  TO  SECURE  PRICi.. 

W^hen,  upon  shipment,  the  seller  takes  a  bill  of  lading 
and  deals  Avith  it  so  as  to   secure  the  contract  price. 

Cliff.  (U.  S.)  370,  Fed.  Cas.  No.  12,565,  and  Sandford  v.  Ferry  Co.,  27 
Ind.  522. 

5  5  Clarkson  v.  Stevens,  106  U.  S.  505,  1  Sup.  Ct.  200,  27  L.  Ed. 
139,  affirming  Stevens  v.  Shippen,  29  N.  J.  Eq.  602. 

5  6  Andrews  v.  Durant,  11  N.  Y.  35,  62  Am.  Dec.  55;  Williams  v. 
Jackman,  16  Gray  (Mass.)  514;  Briggs  v.  Light  Boat,  7  Allen  (Mass.) 
287;  Wright  v.  Tetlow,  99  Mass.  397;  Elliott  v.  Edwards,  35  N.  J. 
Law,  2G5,  Edwards  v.  Elliott,  36  N.  J.  Law,  449,  13  Am.  Rep.  463; 
Derbyshire's  Estate,  81  Ta.  18;  Green  v.  Hall.  1  Houst.  (Del.)  506; 
Hall  V.  Green,  1  Houst.  (Del.)  546,  71  Am.  Dec.  96;  In  re  Carter,  21 
App.  Div.  118,  47  N.  Y.  Supp.  383;  Yukon  River  Steamboat  Co.  y. 
Gratto,  136  Cal.  538,  69  Pac.  252. 

♦See  Sales  Act,   §  20  (1). 


§§  51-53)      RESERVATION    OF    UICHT    OF    POSSESSION.  IC.'f 

either  by  seucliuf;  to  an  afjent  the  bill  of  Indinp:,  with 
a  bill  of  exoliaiiKC  drawn  on  the  buyer  for  the  price, 
with  instriictious  to  deliver  the  bill  of  liidinK  only 
on  acceptance  or  payment  of  the  bill  of  exchauKC,  or  by 
transfcTrinK  the  bill  of  ItulinK  as  security  to  a  banker 
^vho  has  discounted  the  bill  of  exchange,  the  property 
in  the  goods  docs  not  pass  to  the  buyer  until  acceptance 
or  payment  of  the  bill  of  exchange,  or  tender  of  the 
price,  as  the  case  may  be.  And,  if  the  seller  transmits 
the  bill  of  exchange  and  bill  of  lading  to  the  buyer 
to  secure  acceptance  or  payment  of  the  bill  of  ex- 
change, the  buyer  is  bound  to  return  the  bill  of  lading 
if  he  does  not  honor  the  bill  of  exchange,  and  if  he 
\7r0ngfnlly  retains  the  bill  of  la<ling  he  acquires  no 
added  right  thereby. 

The  rule  that  the  seller  who  delivers  goods  to  a  carrier  in 
pursuance  of  authority  derived  from  the  buyer  is  presumed 
thereby  to  appropriate  the  goods  unconditionally  to  the  con- 
tract, like  other  rules  for  determining  when  the  property  has 
passed,  is  simply  a  rule  of  construction  adopted  for  the  purpose 
of  ascertaining  the  real  intention  of  the  parties,  which  they  have 
failed  to  express. ^^  And  therefore,  if  it  appears  that  the  seller, 
though  authorized  to  make  such  appropriation,  has  by  the  terms 
of  the  appropriation  reserved  the  property  in  the  goods,  the 
presumption  must  yield  to  the  facts. '^^  The  commonest  way  of 
reserving  the  property  is  by  means  of  the  l)ill  of  lading.^' 

Right  of  Disposal. 

Where  goods  are  delivered  to  a  carrier,  and  a  bill  of  lading; 
is  taken,  the  delivery  by  the  seller  ,is  not  a  delivery  to  the- 
buyer,  but  to  the  carrier  as  bailee  for  delivery  to  the  persoiT 
indicated  by  the  bill  of  lading.""  When,  therefore,  the  seller 
ships  the  goods  which  he  intends  to  deliver  under  the  contract,, 
by  taking  a  bill  of  lading  making  the  goods  deliverable  to  him- 
self or  to  his  agent,  or  to  the  order  of  himself  or  of  his  agent, 
he  thereby  retains  the  right  to  the  possession  of  the  goods.  The 
time  when  the  property  passes  depends  upon  the  intention  of 

67  Benj.  Sales,  §  381. 

68  See  Godts  v.  Rose,  17  C.  B.  229. 
BO  Ante,  pp.  33-36. 

8  0  Wait  V.  Baker,  2  Exch.  1,  per  Parke.  B.;  Gabarron  v.  Kreeft, 
10  Exch.  274,  per  Bramwell,  B.;   Benj.  Sales,  §  StiU. 


164     EFFECT  OF  CONTRACT  IN  PASSING  PROPERTT.   (Ch.  4 

the  parties,  and  it  may  be  that  the  seller  in  such  case  reserves 
the  property  as  well  as  the  right  to  possession,  or  that  the 
property  passes  notwithstanding  the  form  of  the  bill  of  lading. 
Where  the  seller  has  appropriated  the  goods  to  the  contract, 
but  takes  a  bill  of  lading  to  himself  or  to  his  own  order  under 
circumstances  which  indicate  that  he  intends  to  reserve  the 
property,  it  is  commonly  said  that  he  thereby  reserves  "the 
right  of  disposal."  It  has  been  justly  said  that  "the  term  'right 
of  disposal'  is  not  the  most  apt  word  to  employ  when  laying 
down  a  general  rule  with  regard  to  the  passing  of  the  prop- 
erty," ^^  and,  although  it  has  been  retained  in  the  English  Sale 
of  Goods  Act,®^  it  has  been  discarded  by  the  proposed  American 
Sales  Act.®'  The  rules  established  by  the  decisions  involving 
the  so-called  right  of  disposal  will  be  stated  in  the  following 
sections. 

81  Benj.  Sales  (5tli  Eng.  Ed.)  p.  318,  note  6. 

"Where  the  shipper  takes  and  keeps  in  his  own  or  his  agent's 
hands  a  bill  of  lading  in  this  form  to  protect  himself,  this  is  ef- 
fectual so  far  as  to  preserve  to  him  a  hold  over  the  goods  until 
the  bill  of  lading  is  handed  over  on  the  conditions  being  fulfilled, 
or  at  least  until  the  consignee  is  ready  and  willing  and  offers  to 
fulfill  these  conditions,  and  demands  the  bill  of  lading.  And  we 
think  that  such  a  hold  retained  under  the  bill  of  lading  is  not  mere- 
ly a  right  to  retain  possession  of  the  goods  until  these  conditions  are 
fulfilled,  but  involves  a  i)ower  to  dispose  of  the  goods  on  the  ven- 
dee's default,  so  long,  at  least,  as  the  vendee  continues  in  default." 
Ogg  V.  Shuter,  1  C,  P.  Div.  47,  per  Lord  Cairns. 

In  Mirabita  v.  Bank,  3  Exch.  Div.  164,  Bramwell,  L.  J.,  says:  "I 
think  it  not  necessary  to  inquire  whether  what  the  shipper  possess- 
es is  a  property,  strictly  so  called,  or  a  jus  dispouendi,  because  I 
think,  whichever  it  is.  the  result  must  be  the  same."  But  in  the 
same  case  Cotton,  L.  J.,  appears  to  speak  of  the  reservation  of  the 
right  of  disposal  and  of  the  reservation  of  the  right  of  propert(y 
as  synonymous. 

6  2  Section  19. 

63  Section  20.  In  the  note  to  this  section  Prof.  Williston  says: 
"Subsection  (1)  follows  with  some  change  of  expression  section  19 
of  the  English  Act,  except  that  for  the  somewhat  loose  phrase 
'right  of  disposal'  is  substituted  'possession  or  property.'  The  phrase 
'jus  disponendi'  has  gained  some  currency  as  the  expression  of  the 
right  of  a  seller  who  has  definitely  appropriated  goods  to  a  contract, 
but  who  nevertheless  takes  a  bill  of  lading  to  his  own  order.  The 
truth  is  he  has  reserved  the  property  as  security.  The  situation 
is  similar  to  that  in  a  conditional  sale." 


§§  51-53)       RESERVATION    OF    IlIOUT    OF    TOSSESSION.  lC."i 

Bill  of  Lchliiii^  to  Seller  or  to  1 1  is  Order. 

When  goods  are  shipped,  and  by  the  bill  of  lading  the  goods 
are  deliverable  to  the  order  of  the  seller  or  of  his  agent,  prima 
facie  the  seller  reserves  the  property  in  the  goods.'*  The  fact 
that  the  seller  takes  the  bill  of  lading  to  his  own  order  is  al- 
most decisive  to  show  his  intention  to  reserve  the  property." 
The  presumption  may,  indeed,  be  rebutted  by  proof  that  in  so 
doing  he  acted  as  agent  of  the  buyer  and  did  not  intend  to  re- 
serve the  property;  and  it  is  for  the  jury  to  determine,  as  a 
c|uestion  of  fact,  what  the  real  intention  was."  But  the  mere 
fact  that  the  seller  sends  to  the  buyer  an  invoice  describing  the 

«<  Mirablta  v.  Bank.  3  Exch.  Div.  1G4,  172.  per  Ck)tton,  L.  J.;  Wait 
V.  Baker.  2  I-lxch.  1;  Brandt  v.  Bowlhy,  2  Barn.  &  Adol.  932;  Muakes 
V.  Nicholson,  19  C.  B.  (N.  S.)  200,  34  Law  J.  C.  P.  273;  Ogg  v.  Shu- 
ter,  1  C.  r.  Div.  47,  reversinj,'  L.  U.  10  C.  P.  IHO;  Kllershaw  v.  Mag- 
niac.  G  Bxch.  .''.70:  Faiko  v.  Flotohor.  .34  Law  J.  C.  P.  140  (mate's 
receipt);  Merchants'  Nat.  Bank  v.  Banus,  102  Mass.  291,  29");  Farm- 
ers' &  Mechanics'  Nat.  Bank  v.  Lopan,  74  N.  Y.  DOS,  578;  Erwin  v.  Har- 
ris, 87  Ga.  3.33,  13  S.  E.  r)13;  Alabama,  G.  S.  II.  Co.  v.  Mt.  Vernon 
Co.,  84  Ala.  173,  4  South.  330;  Forcheimer  v.  Stewart,  65  Iowa.  593, 
22  N.  W.  SSC>.  54  Am.  Rep.  30;  Berpman  v.  Railroad  Co.,  104  Mo.  77. 
15  S.  W.  902.  See,  also,  Stollenwenk  v.  Thacher,  115  Mass.  224; 
Vanp:hn  v.  Railroad  Co.,  27  R.  I.  2.35,  01  Atl.  095.  See  Sales  Act.  § 
20  (2).  Cf.  Sale  of  Goods  Act.  §  19  (2).  which  provides  that  "the 
seller  Is  prima  facie  deemed  to  i-eserve  the  right  of  disposal."' 
The  second  sentence  of  Sales  Act.  §  20  (2).  is  new. 

The  delivery  to  the  carrier  may  be  snch  as  to  vest  the  property 
In  the  buyer,  so  that  the  issue  of  a  bill  of  lading  making  the  goods 
otherwise  deliverable  will  not  dive.st  it.  Ogle  v.  Atkinson,  5  Taunt. 
759.    See.  also,  Philadelphia  &  R.  R.  v.  Wireman,  88  Pa.  204. 

The  projierty  and  tlie  right  to  possession  vest  in  the  buyer  up<jn 
indorsement  and  delivery  of  the  bill  of  lading.  Wilmshurst  v. 
Bowker.  2  Man.  &  G.  792;  Key  v.  Cotesworth,  7  E.\rh.  :>'Jo;  Chas. 
F.  Orthwein's  Sons  v.  Elevator  Co..  32  Tex.  Civ.  App.  600,  75  S.  W. 
364;  Mitchell  v.  Baker,  208  Pa.  377.  57  Atl.  760. 

Where  the  seller  took  a  receipt  making  the  goods  deliverable  to 
himself,  and  gave  the  buyer  an  order  making  tlie  goods  deliverable 
to  him,  and  the  carrier  attorned  to  the  buyer,  the  property  passed. 
Hatch  V.  Bayley.  12  Cnsh.  (M:iss.)  27. 

•  5  Shepherd  v.  Harrison,  L.  R.  5  II.  L.  110;  Dows  v.  Bank,  91  U. 
S.  618.  23  L.  Ed.  214;  Newcnmb  v.  Railroad  C^.rp..  115  Mass.  230; 
Village  of  Bellefontaine  v.  Vassaux.  55  Ohio  St  323,  45  N.  E.  321. 

•"'8  .Toyce  V.  Swann,  17  C.  B.  (N.  S.)  SI:  Van  Casteel  v.  Booker,  2 
Exch.  691;  Browne  v.  Hare.  4  Hurl.  &  N.  822.  2i>  T/iw  J.  Exch.  6; 
Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291;   Ilobart  v.  Uttlefleld, 


166     EFFECT  OF  CONTRACT  IN  PASSING  PROPERTY.   (Ch.  4 

goods  as  shipped  on  his  account  and  at  his  risk,  while  evidence 
of  an  intention  to  transfer  the  property, ^^  is  not  enough  to 
rebut  the  presumption ;  ®^  and  the  presumption  arises,  although 
the  seller  ships  the  goods  in  the  buyer's  own  vessel,  and  the  bill 
of  lading  states  that  the  goods  are  freight  free  and  the  buyer's 
own  property.^'  The  presumption  that  the  seller  reserves  the 
property  arises,  also,  when  he  takes  the  bill  of  lading  to  him- 
self or  to  his  agent.'' °  When  the  seller  thus  reserves  the  prop- 
erty in  the  goods,  for  the  purpose  of  entirely  withdrawing 
them  from  the  contract,  he  may  dispose  of  them  absolutely, 
even  though  he  thereby  commits  a  breach  of  the  contract ;  nor 
will  the  property  in  the  goods  pass  to  the  buyer  upon  tender  by 
him  of  the  price  or  of  performance  of  the  conditions  of  the 
contract.''^  If  the  property  does  pass,  but  the  seller  retains 
possession  of  the  bill  of  lading,  he  thereby  reserves  a  right  to 
the  possession  of  the  goods  as  against  the  buyer ;  in  other 
words,  he  preserves  his  lien.''^ 

The  effect  of  a  shipment  under  the  circumstances  under  con- 
sideration was  stated  in  a  leading  case  as  follows :  ''^  "In  the 
case  of  such  a  contract  [a  contract  for  sale  of  goods  not  spe- 
cific] ,  the  delivery  by  the  vendor  to  a  common  carrier,  or  (un- 
less the  effect  of  the  shipment  is  restricted  by  the  terms  of  the 

13  R.  I.  341;  Hamilton  v.  Brewing  Co.,  129  Iowa,  172,  105  N.  W. 
438,  2  L.  R.  A.   (N.  S.)   1078. 

6T  Walley  v.  Montgomery,  3  East,  585.  Where  the  shippers,  who 
were  indebted  to  the  consignee,  tooli  a  bill  of  lading  in  their  own 
name,  but  wrote  to  him,  "We  deliver  you  this  load  on  our  indebted- 
ness," the  property  passed,  and  the  consignee  could  maintain  replev- 
in against  a  creditor  of  the  shippers  who  attached  the  goods 
while  in  possession  of  the  carrier.  Straus  v.  Wessel,  30  Ohio  St. 
211. 

8  8  Cases  cited  in  note  65,  supra. 

«»  Turner  v.  Trustees  of  Liverpool  Docks,  6  Exch.  543;  Gabarron 
V.  Kreeft,  L.  R.  10  Exch.  274. 

7  0  Where  the  seller  delivered  goods  to  a  carrier,  consigned  to  him- 
self in  care  of  the  buyer,  the  property  did  not  pass.  Ward  v.  Taylor, 
56  111.  494. 

71  Wait  V.  Baker,  2  Exch.  1;  Ellershaw  v.  Magniac,  6  Exch.  570; 
Gabarron  v.  Kreeft,  L.  R.  10  Exch.  274. 

7  2  See  Browne  v.  Hare,  4  Hurl.  &  N.  822,  29  L.  J.  Exch.  6,  per 
Pollock,  C.  B. 

78Mirabita  v.  Bank,  3  Exch.  Div.  104,  per  Cotton,  L.  J. 


§^  51-53)       RESEIIVATION    OF    UIGUT    OF    rOSSESSION.  167 

bill  of  lading)  shipment  on  board  a  ship  of,  or  chartered  for,  the 
pnrchaser,  is  an  appropriation  sufficient  to  pass  the  property. 
If,  however,  the  vendor,  wiien  shipping  the  articles  which  he 
intends  to  deliver  under  the  contract,  takes  the  bill  of  lading 
to  his  own  order,  and  does  so,  not  as  agent  or  on  behalf  of  the 
purchaser,  but  on  his  own  behalf,  it  is  held  that  he  thereby 
reserves  to  himself  a  power  of  disposing  of  the  property,  and 
consequently  there  is  no  final  appropriation,  and  the  property 
docs  not.  on  shipment,  pass  to  the  purchasers." 

It  must  not  be  supposed,  however,  that,  because  the  shipper  is 
agent  of  the  consignee,  the  property,  if  originally  in  the  ship- 
per, necessarily  passes  on  shipment;  for,  if  he  advances  iiis 
own  money  or  credit  for  the  purchase  of  the  goods,  he  is  in 
the  position  of  a  seller,  and  he  may  reserve  the  property  in  the 
goods  to  the  extent  of  his  advances,  in  the  same  manner."* 
"Where  a  commercial  correspondent,  however  set  in  motion  by 
a  principal  for  whom  he  acts,  advances  his  own  money  or 
credit  for  the  purchase  of  property,  and  takes  the  bill  of  lading 
in  his  own  name,  looking  to  such  property  as  the  reliable  and 
safe  means  of  reimbursement  up  to  the  moment  when  the  orig- 
inal principal  shall  pay  the  purchase  price,  he  becomes  the 
owner  of  the  property  instead  of  its  pledgee,  and  his  relation 
to  the  original  mover  in  the  transaction  is  that  of  an  owner  un- 
der a  contract  to  sell  and  deliver  when  the  purchase  price  is 
paid."  '» 

T*  Jenk.\Tis  V.  Rrown.  14  Q.  B.  490. 

7  6  Moors  V.  Kidder.  100  N.  Y.  32,  12  N.  E.  818.  In  Drcxel  v. 
Pease,  133  N.  Y.  120,  30  N.  E.  732,  referring  to  the  doctrine  stated 
In  Moors  v.  Kidder,  supra,  the  court  says:  "Notbln;;  tberein  gives 
color  to  the  idea  that  tlie  correspondent's  ownership  is  of  that  char- 
acter which  would  permit  his  exaction,  even  though  agreed  to 
by  the  principal,  of  a  general  lien  upon  the  property  for  other  and 
prior  indebtedness  of  the  principal  as  against  one  in  the  situation 
of  St.  Aiuant.  The  correspondent's  position  Is  one  of  ownership,  so 
far  only  as  is  necessary  to  secure  him  for  the  advances  he  made 
upon  the  merchandise  described  in  the  bill  of  lading,  and  In  such 
a  case  as  this  he  is  boimd  to  sell  upon  receipt  of  the  purchase  price 
from  the  principal,  or.  in  other  words,  upon  receipt  of  the  amount 
he  advanced  upon  its  credit.  In  no  other  sense  is  the  correspondent 
the  owner  of  the  property." 


168     EFFECT  OF  CONTRACT  IN  PASSING  PROPERTY.   (Cll.  4 

Bill  of  Lading  to  Buyer  or  to  His  Order. 

If  by  the  bill  of  lading  the  goods  are  deliverable  to  the  order 
of  the  buyer  or  of  his  agent,  it  seems  that  prima  facie  the  prop- 
erty passes,  but  that  by  retaining  the  possession  of  the  bill  of 
lading  the  seller  would  reserve  a  right  to  the  possession  of  the 
goods  as  against  the  buyer.''®  Where  the  goods  are  deliverable 
to  the  buyer,  and  not  to  his  order,  a  somewhat  different  ques- 
tion is  presented.  It  appears  to  be  the  custom  of  railway  com- 
panies, when  the  bill  of  lading  is  not  in  terms  negotiable,  to 
deliver  to  the  consignee  named  without  presentation  of  the  bill 
of  lading,  and  it  has  been  held  that,  in  view  of  such  a  custom, 
although  it  cannot  affect  the  question  of  the  title  of  a  trans- 
feree of  the  bill  of  lading  as  against  the  transferror  thereof, 
the  carrier  is  justified  in  delivering  to  the  consignee  without 
production  of  the  bill  of  lading,  as  against  such  transferee,  at 
least  before  notice  of  the  transfer.^ ^  The  fact  that  the  seller 
takes  a  bill  of  lading  in  this  form,  however,  is  not  con- 
clusive in  determining  whether  the  property  passes  to  the  buy- 
er on  shipment.    In  such  a  case,  prima  facie  the  property  pass- 


es See  Browne  v.  Hare,  4  Hurl.  &  N,  822,  29  L.  J.  Exch.  6,  per  Pol- 
lock, C.  B.,  and  Erie,  J.  Cf.  Sales  Act,  §  20  (3).  Prof.  Willistou  says 
that  this  subsection,  which  is  not  in  the  English  act,  is  thought 
to  be  warranted  by  existing  law. 

Where  C.  &  Co.,  acting  as  commission  agents  for  T.  &  Ck).  to  pro- 
vide funds  for  the  purchase  of  goods  drew  bills  on  T.  &  Co.  which 
they  discounted,  and  with  the  proceeds  purchased  goods  which  they 
shipped,  sending  the  bill  of  lading  making  the  goods  deliverable  to 
the  order  of  T.  &  Co.  and  the  invoices  by  post  direct  to  them,  advis- 
ing them  of  the  bills  drawn  on  them,  which  in  ordinary  course  they 
accepted  on  presentment  and  paid  at  matm'ity,  and  some  of  which 
they  accepted,  but  some  of  which  they  refused  to  accept,  and  none 
of  which  they  paid,  it  was  held  that  the  property  passed  as  soon  as 
the  goods  were  put  on  board  and  the  bills  of  lading  were  put  in  the 
post  directed  to  T.  &  Co.    Ex  parte  Banner,  2  Ch.  Div,  278. 

Where  the  goods  were  shipped  on  the  buyer's  chartered  vessel, 
and  the  seller  took  a  set  of  three  bills  of  lading  making  the  goods 
deliverable  to  the  buyer's  order,  but  only  one  of  the  bills  was 
stamped,  and  the  seller  retained  it  and  sent  one  of  the  others  to 
the  buyer,  this  was  evidence  of  an  intention  to  reserve  the  prop- 
erty.   Moakes  v.  Nicholson,  34  Law  J.  C.  P.  273,  19  C.  B.  (N.  S.)  290. 

^^  Forbes  v.  Railroad  Co.,  133  Mass.  1.'j4.  Cf.  Colgate  v.  Penn- 
sylvania Co.,  102  N.  Y.  120,  6  N.  E.  114. 


§§  51-53)      RESERVATION    OF   RIGHT  Or   POSSESSION.  169 

es;^^  but  this  inference  may  be  overcome  by  eviilence  of  a 
different  intention,  as  by  showing  that  the  seller  dealt  with  the 
bill  of  ladinc^  for  the  purpose  of  securing  the  price/"  although 
this  has  been  held  not  conclusive.*" 

Dealing  zvith  Bill  of  Lading  to  Secure  Price. 

Although,  when  the  seller  on  shipment  takes  a  bill  of  lad- 
ing to  his  own  order,  not  as  agent  for  the  buyer,  but  on  his 
own  behalf,  he  thereby  reserves  the  property  in  the  goods,  and 
the  buyer  acquires  no  rights  in  them,  notwithstanding  their 
appropriation  to  the  contract,  a  different  situation  arises  if 
ihc  seller  deals  with  the  bill  of  lading  only  to  secure  the  price, 
and  not  with  the  intention  of  withdrawing  the  goods  entirely 
from  the  contract — as  where  he  sends  the  bill  of  lading,  to- 
gether with  a  bill  of  exchange  drawn  on  the  buyer  for  the  price, 
to  an  agent,  with  instructions  to  deliver  the  bill  of  lading  on 
acceptance  or  payment  of  the  bill  of  exchange.  In  such  case, 
indeed,  the  property  does  not  pass  to  the  buyer  until  acceptance 
or  payment  of  the  bill  of  exchange  or  tender  of  the  price;  *^ 

78  Emory  v.  Bank,  25  Ohio  St.  :'.CiO.  18  Am.  Hop.  299;  Bank  of 
Litchfield  v.  Elliott,  83  Minn.  4lV.),  80  N.  W.  4.j4. 

Where  the  seller  delivered  g<x)ds  to  a  carrier,  consigned  to  the 
buyer,  and  took  a  shipping  receipt  in  the  name  of  the  buyer,  which 
he  sent  with  a  draft  to  a  bank,  with  directions  to  deliver  the  re- 
ceipt on  acceptance  of  the  draft,  a  finding  that  the  property  passed 
to  the  buyer  on  delivery  to  the  carrier  was  warranted.  Wigton  v. 
Bowley,  130  Mass.  252. 

70  Emery  v.  Bank,  supra;  Merchants'  Exchange  Bank  v.  McGraw, 
8  C.  C.  A.  420,  ii9  Fed.  972;  Scharff  v.  Meyer,  133  Mo.  428,  34  S. 
W.  858.  54  Am.  St.  Rep.  072;  Hilmer  v.  Hills,  138  Cal.  1.34,  70  Pac. 
1080;  Greenwood  Grocery  Co.  v.  Elevator  Co.,  72  S.  C.  450,  52  S. 
B.  191,  2  L.  R.  A.  (N.  S.)  79.  110  Am.  St.  Rep.  027. 

80  Bank  of  Litchfield  v.  Elliott,  snpra. 

81  Mirabita  v.  Bank,  3  Exch.  Div.  1G4.  per  Cotton,  L.  J.;  Shepberd 
V.  Harrison,  L.  R.  4  Q.  B.  19G;  Id.  493.  in  the  house  of  lords,  L. 
R.  5  H.  L.  116;  Ogg  v.  Shuter,  1  C.  P.  Dlv.  47;  Alderman  v.  Rail- 
road. 115  Mass.  233;  Farmers'  &  Mechanics'  Nat.  Bank  v.  Logan, 
74  N.  Y.  508.  578;  Sooligson  v.  Bhilbrick  (C.  C.)  30  Fed.  000;  .Tones 
V.  Brewer,  79  Ala.  545;  Freeman  v.  Kraemer,  03  Minn.  242,  05  N. 
W.  455;  Baker  v.  Railroad  Co.,  98  Iowa.  438,  07  N.  W.  370;  Willman 
Mercantile  Co.  v.  Fussy,  15  Mont.  511,  39  Pac.  738,  48  Am.  St.  Rep. 
698;  The  Prussia  (D.  C.)  100  Fed.  484;  Portland  Flouring  Mills  Co. 
V.  Insurance  Co.,  130  Fed.  800,  65  C.  C.  A.  344;  McArthur  Co.  v. 
Bank,  122  Mich.  223,  81  N.  W.  92;    Hopkins  v.  Cowen,  90  Md.  1.^.2. 


170     EFFECT  OF  CONTRACT  IX  PASSING  PROPERTY.   (Ch.  4 

but  upon  such  acceptance,  or  payment,  or  tender,  the  property 
vests  in  him.*^  The  seller  thus  retains  the  legal  title  to  the 
goods  only  as  security,  the  equitable  title  vesting  in  the  buyer, 
the  seller's  right  over  the  goods  being  in  the  nature  of  a  mort- 
gage. 

Again,  if  the  seller  draws  on  the  buyer  for  the  price,  and 
transmits  the  bill  of  exchange  and  the  bill  of  lading  directly 
to  the  buyer,  upon  condition  that  he  shall  not  retain  the  bill 
of  lading  unless  he  honors  the  bill  of  exchange,  the  buyer 
is  bound  to  return  the  bill  of  lading  if  he  does  not  comply  with 
the  conditions;  and  if  he  wrongfully  retains  the  bill  of  lading 
he  acquires  thereby  no  added  right  to  it  or  to  the  goods. ^' 

44  Atl.  1062,  47  L.  R.  A.  124;  Vaughn  v.  Railroad  Co.,  27  R.  I.  2.35, 
61  Atl.  695.  A  bill  of  lading  deliverable  to  order  of  the  seller, 
when  attached  to  and  forwarded  with  a  time  draft,  without  special 
instructions,  to  an  agent,  for  collection,  may  be  surrendered  to  the 
drawee  on  acceptance  of  the  draft.  National  Banli  of  Commerce  v. 
Bank.  91  V.  S.  92,  23  L.  Ed.  208. 

But  it  has  been  held  such  a  bill  of  lading  attached  to  and  for- 
warded with  a  sight  draft  for  collection,  without  other  instructions, 
may  not  be  surrendered  without  payment  of  the  draft,  notwithstand- 
ing that  the  draft  is  entitled  to  grace.  Michaud  v.  Lumber  Co.,  122 
Mich.  .305,  81  N.  W.  93;  And  see  Security  Banli;  v.  Luttgeu,  29  Minn. 
.363,  13  N.  W.  151;  Second  Nat.  Bank  v.  Cummings,  89  Tenn.  609, 
IS  S.  W.  115,  24  Am.  St.  Rep.  618;  Kentucky  Refining  Co.  v.  Refining 
Co.,  lOi  Ky.  559,  47  S.  W.  602,  42  L.  R.  A.  353,  84  Am.  St.  Rep.  468. 

Where  the  buyer  paid  the  draft  and  received  the  bill  of  lading 
without  notice  of  an  attachment  of  the  goods  as  the  seller's  prop- 
erty, the  attachment  was  good.  Kentucky  Refining  Co.  v.  Refining 
Co.,  104  Ky.  559,  47  S.  W.  602,  42  L.  R.  A.  353,  84  Am.  St.  Rep.  468. 
Cf.  Peters  v.  Elliott,  78  111.  321. 

8  2  Mirabita  v.  Bank,  supra.  In  this  case  Cotton,  L.  J.,  said: 
"But,  if  the  bill  of  lading  has  been  dealt  with  only  to  secure  the 
contract  price,  there  is  neither  principle  nor  authority  for  holding 
that  in  such  a  case  the  goods  shipped  for  the  purpose  of  com- 
pleting the  contract  do  not,  on  payment  or  tender  by  the  purchaser 
of  the  contract  price,  vest  in  him.  When  this  occurs  there  is  a  per- 
formance of  the  condition  subject  to  which  the  appropriation  was 
made,  and  everything  which,  according  to  the  intention  of  the  par- 
ties, is  necessary  to  transfer  the  property  is  done;  and  in  my  opin- 
ion, under  such  circumstances,  the  property  does,  on  payment  or 
tender  of  the  price,  pass  to  the  purchaser." 

8  3  Shepherd  v.  Harrison,  L.  R.  4  Q.  B.  196;  Id.  493,  L.  R.  5  H. 
L.  116.  1.33.  per  Lord  Cairns;  Cahn  v.  Pockett  (1S9S)  2  Q.  B.  61; 
Id.  (1899)  1  Q.  B.  643;    Cayuga  County  Nat.  Bank  v.  Daniels.  47  N. 


§§  51-53)       KESEUVATIUN    OF    UIUIIT    OF    i'OSSESSION.  171 

Whether  a  buyer  who  does  not  comply  with  the  condition, 
where  the  bill  of  lading  makes  the  goods  deliverable  to  him, 
either  by  its  terms  or  by  indorsement,  can  confer  a  good  title 
upon  a  bona  fide  purchaser,  indepentlently  of  statute,  is  a  ques- 
tion upon  which  the  courts  are  not  in  accord.** 

Most  frequently,  when  the  seller  wishes  to  secure  the  price, 
he  draws  on  the  buyer  for  the  amount  and  obtains  a  discount 
of  the  bill  of  exchange  from  a  banker,  to  whom  he  delivers  it 
with  the  indorsed  bill  of  lading  attached.  Under  these  circum- 
stances the  banker  acquires  a  special  property  in  the  goods  to 
secure  his  advances,  and  the  property  does  not  pass  to  the 
buyer  until  acceptance  or  payment  of  the  bill  or  tender  of  the 
price.*''     The   same   rule   is    applied   when    the   seller   takes 

Y.  631;  Farmers'  &  Mechanics'  Nat.  Bauk  v.  Logau,  71  N.  Y.  5<;S; 
Moors  V.  Kidder,  lOD  N.  Y.  32,  li:  N.  E.  818.  Wliere  tlie  selier  depos- 
ited in  tlie  mail,  directed  to  tlie  buj'er,  an  unindorsed  bill  ot  lading, 
attaclied  to  a  draft  lor  tlie  price,  the  question  wLether  tbe  prop- 
erty bad  passed  was  for  tbe  jury.  Alabama  G.  ti.  11.  Co.  v.  Mt.  Ver- 
non Co.,  84  Ala.  173,  4  Soutb.  350. 

A  banker  who  made  advances  and  took  tbe  bill  of  lading  to  bis 
own  order,  witb  autbority  to  dispose  of  tbe  goods  as  security,  and 
wbo  indorsed  tbe  bill  of  lading  to  tbe  buyer  as  his  agent  only  to 
enable  him  to  get  the  goods  from  the  carrier,  did  not  release  his 
title.  Moors  v.  Wyman,  141)  Mass.  UO,  lo  N.  E.  1U4.  See  Sales  Act, 
§  20  (4),  which  provides  that  if  he  wrongfully  retains  tbe  bill  of 
lading  "he  acquires  no  added  right  Uiereby."  Cf.  Sale  of  Goods  Act, 
§  19  (3),  where  tbe  language  is,  "The  property  does  not  pass  to 
him."  It  seems  that  wrongful  retaining  of  tbe  bill  of  lading  would 
confer  no  right  to  possession,  altboiigb  tbe  property  might  have 
passed. 

8*  Ante,  p.  36.  Sales  Act,  §  20  (4),  in  accordance  with  mercan- 
tile understanding  and  convenience,  protects  the  bona  hde  pur- 
chaser, although  the  bill  of  exchange  has  not  been  honored. 

85  Mirabita  v.  Bank,  3  Exch.  Div.  104;  Jenkyns  v.  Brown,  14  Q. 
B.  4'JO,  19  Law  J.  Q.  B.  280;  Dows  v.  Bank.  01  U.  S.  018,  23  L.  Ed. 
214;  Forty  Sacks  of  Wool  (C.  C.)  14  Fed.  013;  First  Nat.  Bank  of 
Cairo  v.  Crocker,  111  Mass.  103;  Fifth  Nat.  Bank  of  Chicago  v. 
Bayley,  115  Mass.  228;  Forbes  v.  liailroad  Co.,  133  Mass.  154; 
Bank  of  Rochester  v.  Jones,  4  N.  Y.  497.  55  Am.  Dec.  290;  Fanners' 
&  Mechanics'  Nat.  Bank  v.  Logan,  74  N.  Y.  508;  Hieskell  v.  Bank, 
89  Pa.  155,  33  Am.  Kep.  745;  llalsey  v.  Warden,  25  Kan.  128;  Se- 
curity Bank  v.  Luttgen,  29  Minn.  303,  13  N.  W.  151;  Grayson  Coou- 
ty  Nat.  Bank  v.  Railway  (.Tex.  Civ.  App.)  79  S.  W.  1094. 


172  EFFECT   OF   CONTRACT   IN    PASSING   PROPERTY.        (Ch.  4 

a  bill  of  lading  making  the  goods  deliverable  to  the  buyer  and 
thus  deals  with  it  to  secure  the  price. ^*  Under  these  circum- 
stances the  banker  acquires  a  special  property  in  the  goods  to 
secure  his  advances.^''  In  some  cases  it  has  been  held  that  a 
banker  who  purchases  a  draft,  with  the  bill  of  lading  attached 
making  the  goods  deliverable  to  the  order  of  the  consignor, 
assumes  the  obligation  of  the  seller  to  deliver  according  to  the 
contract  the  goods  represented  by  the  bill  of  lading  to  the 
drawee  of  the  draft;  *®  but  it  is  believed  that  this  doctrine  is 
erroneous.  On  principle  the  assignee  of  the  bill  of  lading  and 
of  the  draft  takes  the  title  of  the  seller  only  as  security,  and 
acquires  substantially  the  right  of  a  mortgagee,  his  interest  be- 
ing discharged  by  payment  of  the  debt,  and  he  becomes  subject 


8  8  See  cases  cited  note  79,  supra. 

S7  Whether  one  to  whom  a  bill  of  lading  is  indorsed  as  security 
is  a  pledgee  or  a  mortgagee  depends  upon  the  intention  of  the 
parties.  Sewell  v.  Burdick,  10  App.  Cas.  74.  It  seems  that  a  banli- 
er  who  maizes  advances  and  talies  the  bill  of  lading  to  his  own  or- 
der, with  authority  to  take  possession  and  dispose  of  the  goods 
for  his  security  or  reimbm'sement,  is  a  mortgagee.  See  Moors  v. 
Kidder,  106  N.  Y.  32,  12  N.  E.  818;  Mershon  v.  Wheeler,  76  Wis. 
502,  45  N.  AV.  95. 

In  Moors  v.  Wyman,  146  Mass.  60,  15  N.  E.  104,  it  was  said  that 
the  banker  "had  a  title,  whether  absolute  or  qualified  does  not  mat- 
ter." But  in  Moors  v.  Drury,  186  Mass.  424,  71  N.  E.  810,  the  view 
was  taken  that  the  banker  was  owner,  and  not  a  mortgagee  or 
pledgee.  And  see  In  re  New  Haven  Wire  Co.,  57  Conn.  352,  18 
Atl.  266,  5  L.  R.  A.  300. 

Where  a  shipper  drew  against  his  consignment  for  sale  upon 
the  consignees,  with  whom  his  account  was  already  overdrawn, 
and  assigned  the  duplicate  bill  of  lading  to  a  bank  which  discount- 
ed the  draft,  the  consignees  had  no  right  to  apply  the  goods  or 
their  proceeds  in  discharge  of  the  shipper's  liability  to  themselves 
arising  from  other  transactions;  the  bank  having  acquired  title  to 
the  consignment  to  the  extent  of  the  draft  discounted  on  security 
thereof.  First  Nat  Bank  v.  Ege,  109  N.  Y.  120,  16  N.  E.  317,  4  Am. 
St.  Rep.  431;  See,  also,  Drexel  v.  Pease,  133  N.  Y.  129,  30  N.  E.  732. 

8  8  Finch  V.  Gregg,  126  N.  C.  176,  35  S.  E.  251,  49  L.  R.  A.  670 
(of.  Sloan  V.  Railroad  Co.,  126  N.  C.  487,  36  S.  E.  21 ;  Perry  v.  Bank. 
131  N.  C.  117,  42  S.  E.  551);  Searles  Bros.  v.  Grain  Co..  80  Miss. 
688,  32  So.  287;  Haas  v.  Bank.  144  Ala.  562,  39  South.  129,  1  L.  R. 
A.  (N.  S.)  242. 


§§  51-53)      RESERVATION   OF   RIGHT   OF   POSSESSION.  173 

to  no  liability  to  tlio  buyer  which  he  docs  not  expressly  as- 
sume; and  this  view  is  sustained  by  the  weight  of  authority.*" 

«»ToIerton  &  Sto(s<.n  Co.  v.  lianU.  112  Iowa.  700.  84  N.  W.  930,  .'0 
L.  R.  A.  777;  S.  lilaisdell.  Jr..  Co.  v.  Bank,  90  Tox.  r^2i\  75  S.  W. 
292,  02  Tj.  R.  a.  90S,  97  Am.  St.  Rep.  944  (overruling  Lauda  v.  Lat- 
tin  Bros.,  19  Tex.  Civ.  App.  210,  40  S.  W.  4S»;  Blais<lell  &  Co.  v. 
White  &  Co.  (Tex.  Civ.  App.)  7C>  S.  W.  70;  Hall  v.  Kelfbr,  04  Kan. 
311,  67  Pac.  niS.  G2  !>.  R.  A.  758,  91  Am.  St.  Ilep.  209.  And  see  49 
L.  R.  A.  679,  note;  1  L.  R.  A.  (N.  S.)  242,  note;  14  llarv.  Law  Rev. 
159. 


174  FRAUD  AND   RETENTION   OF   POSSESSION.  (Ch.  5- 

CHAPTER  V. 

FRAUD  AND  RETENTION  OF   POSSESSION. 

54-55.     Contract  or  Sale  Induced  by  Fraud. 

56-57.         Remedies  of  Defrauded  Party. 

58-59.     Fraud  on  Creditors — Retention  of  Possession. 

60.     How    Far    Delivery    is    Essential    to    Transfer   of   Property 
against  Creditors  and  Purchasers. 

CONTRACT  OR  SALE  INDUCED  BY  FRAUD. 

54.  When  a  party  to  a  contract  to  sell  or  a  sale  has  been  in-^ 

dnced  to  enter  into  it  by  the  frand  of  the  other  party, 
the  contract  or  sale  is  voidable  at  his  option. 

55.  CHARACTERISTICS  OF  FRAUD.     Fraud  is  a  false  repre- 

sentation of  fact,  made  Ttrith  a  kno^vledge  of  its  false- 
hood, or  in  reckless  disregard  w^hether  it  be  true  or 
false,  'with  the  intention  that  it  shall  be  acted  upon 
by  the  complaining  party,  and  actually  inducing  him 
to   act   upon   it. 

Fraud  renders  all  contracts  voidable  both  at  law  and  in  eq- 
uity. A  man  is  not  bound  by  a  contract  to  which  his  consent 
has  been  obtained  by  fraud,  because  but  for  the  fraud  he 
would  not  have  consented.^ 

Fraud  is  commonly  said  to  be  so  subtle  in  its  nature  and 
manifold  in  its  forms  as  to  be  impossible  of  definition.  Never- 
theless the  statement  of  its  essential  characteristics  which  has 
been  given  above,  substantially  in  the  language  of  Sir  Wil- 
liam R.  Anson  ^  sufficiently  indicates  the  nature  of  such  fraud 
as  will  render  voidable  a  contract  of  sale.  The  same  state  of 
facts  which  is  ground  for  avoidance  also  gives  rise  to  an  action 
at  common  law  for  deceit,  in  which  the  defrauded  party  may 
recover  such  damages  as  he  has  suffered  by  reason  of  the  false 
representation.  And  a  practical  test  of  fraud,  as  opposed  to 
misrepresentation  which  is  not  fraudulent,   is  that  the  first 

1  Benj.  Sales,  §  428  et  seq.;  post,  p.  188. 

2  Anson,  Cont.  145.  His  discussion  of  fraud  has  been  closely  fol- 
lowed.   And  see  Clark,  Cont.  (2d  Ed.)  220. 


§§  54-55)      CONTRACT    OR    SAI.K    INDrrKD    RT    FRAUD.  17.") 

(Iocs,  and  the  second  docs  not,  give  rise  to  an  action  ox  de- 
licto." 

fraud  is  a  False  Rcf^rcsciitatio)!. 

A  mistaken  belief  in  the  facts  may  be  created  by  active 
means,  as  by  fraudnlcnt  concealment  or  misrepresentation,  or 
passively,  by  mere  nondisclosure.  But  it  is  only  when  a  man 
is  under  some  obligation  to  disclose  facts  that  mere  silence  will 
be  considered  as  a  means  of  deception.  In  contracts  of  sale, 
disclosure  is  not  ordinarily  incumbent  on  the  seller.*  The  rule 
is  caveat  emptor.  It  has  even  been  held  that  the  seller  is  under 
no  obligation  to  communicate  the  existence  of  latent  defects, 
such  as  a  hidden  disease  in  an  animal,  unless  by  act  or  ini])lica- 
tion  he  represents  such  defects  not  to  exist ;  ^  but  it  is  general- 
ly held  in  this  country  that  the  intentional  nondisclosure  of 
such  a  defect  by  the  seller,  when  he  knows  or  has  reason  to 
know  that  it  is  unknown  to  the  buyer,  is  fraudulent.®  On  the 
other  hand,  the  buyer  is  not  bound  to  disclose  to  the  seller 
facts  as  to  which  information  is  equally  open  to  both ;  for 
example,  facts  which  would  enhance  the  price.'     Nor  does 

«  Clark,  Cont.  (2d  Ed.)  209. 

*  Smith  V.  Ilughos,  L.  I{.  G  Q.  B.  507;  Laidlaw  v.  Organ,  2  Wheat. 
(U.  S.)  178.  4  L.  Ed.  214;  People's  Bank  v.  Boiiart,  81  N.  Y.  101,  37 
Am.  Rep.  481;  Kintzing  v.  McElrath,  5  Pa.  407;  Cogel  v.  Kuiseley. 
89  111.  598. 

5  Ward  V.  Hobbs,  3  Q.  B.  Div.  150,  4  App.  Cas.  13;  Boniuger  v. 
Corwin,  24  N.  J.  Law,  257;  I'aul  v.  lladlej-,  23  Barb.  (N.  Y.)  521; 
Morris  v.  Thompson.  85  111.  10. 

6  Paddock  v.  Strobridgo,  29  Vt.  471;  Maynard  v.  Maynard,  49  Vt. 
297;  Jeffrey  v.  Bigelow,  VA  Wend.  (N.  Y.)  518,  2S  Am.  Dec.  470:  Han- 
son V.  Edgerly,  29  N.  H.  :^43;  Barron  v.  Alexander,  27  Mo.  5.30;  Grigs- 
by  V.  Stapleton,  94  Mo.  423,  7  S.  W.  421;  Cardwcll  v.  McClelland,  3 
Snood  (Tenn.)  150;  Armstrong  v.  IlnlTstntler,  19  Ala,  51;  Marsh  v. 
Webber,  13  Minn.  109  (Gil.  99);  Tin-ncr  v.  Ilnggins,  14  Ark.  21;  Dow- 
ling  V.  Lawrence.  58  Wis.  282,  16  N.  W.  552;  Stewart  v.  Rancbe  Co., 
128  U.  S.  383,  388,  9  Sup.  Ct.  101,  32  I>.  Ed.  4.39;  Downing  v.  Dear- 
born, 77  Me.  457,  1  Atl.  407;  Joplin  Water  Co.  v.  Bathe,  41  Mo.  App. 
285. 

7  Fox  V.  Mackroth,  2  Brown,  C.  C.  400;  Turner  v.  Harvey,  Jae. 
170,  per  Lord  Eldon;  I.aidl:iw  v.  Organ.  2  Wheat.  (IT.  S.)  178,  4  L.  Ed. 
214;  Blydenburgh  v.  Welsh,  Baldw.  (U.  S.)  331,  Fed.  Cas.  No.  1,583; 
Kintzing  v.  McElrath,  5  Pa.  407. 

A  duty  to  disclose  arises  where  the  buyer  stands  in  a  confidential 
relation  to  the  seller.     Smith  v.  Sweeney,  GO  Ala.  524;    Oliver  v    Oil 


176  FRAUD   AND    RETENTION    OF   POSSESSION.  (Ch.  5 

his  failure  to  disclose  that  he  is  insolvent  amount  to  fraud,  if  he 
does  not  buy  intending  not  to  pay.*  As  a  rule,  to  charge  the 
seller  with  fraud,  there  must  be  some  active  attempt  to  deceive 
either  by  statement  which  is  false,  or,  at  least,  by  representa- 
tion which,  though  true  as  far  as  it  goes,  is  accompanied  by  such 
a  suppression  of  the  facts  as  to  convey  a  misleading  impres- 
sion.^ If  the  buyer  wishes  to  protect  himself  further,  he  must 
require  of  the  seller  a  warranty  of  any  matter  the  risk  of  which 
he  is  unwilling  to  assume.^"  Any  device,  however,  used  by  the 
seller  to  induce  the  buyer  to  omit  inquiry  or  examination  into 
defects,  is  as  much  a  fraud  as  active  concealment.^^ 

The  Representation  must  be  of  Fact. 

Fact  is  here  used  in  distinction  from  opinion,  intention,  and 
law. 

Same — Not  Matter  of  Opinion. 

A  mere  representation  of  opinion  which  turns  out  to  be  un- 
founded will  not  invalidate  a  contract. ^^     Thus  statements  of 

ver,  118  Ga.  362,  45  S.  E.  232.  Of.  Fletcher  v.  Bartlett,  157  Mass. 
113,  31  N.  E.  760. 

8  Post,  p.  179. 

9  Peek  V.  Gurney,  K  R.  6  H.  L,.  377,  403,  per  Lord  Cairns;  Chamber- 
lin  V.  Fuller,  59  Vt.  247,  9  Atl.  832 ;  Bench  v.  Sheldon,  14  Barb.  (N. 
Y.)  66. 

A  partial  statement  by  the  buyer  as  to  his  financial  condition,  if 
misleading,  is  fraudulent.  Newell  v.  Randall,  32  Minn.  171,  19  N.  W. 
972,  50  Am.  Rep.  562;  Collins  v.  Cooley  (N.  J.  Eq.)  14  Atl.  574;  Ten- 
nessee Coal,  I.  &  R.  Co.  V.  Sargent,  2  Ind.  App.  458,  28  N.  B.  215.  Cf. 
Standard  Horseshoe  Co.  v.  O'Brien,  88  Md.  335,  41  Atl.  898;  Tootle  v. 
Petrie,  8  S.  D.  19,  65  N.  W.  43. 

10  Veasey  v.  Doton,  3  Allen  (Mass.)  380,  381;  Morrison  v.  Koch, 
32  Wis.  2.54,  261. 

11  Matthews  v.  Bliss,  22  Pick.  (Mass.)  48,  52;  Smith  v.  Country- 
man, 30  N.  Y.  665,  681;  Roseman  v.  Canovan,  43  Cal.  110;  Croyle 
V.  Moses,  90  Pa.  2.50,  35  Am.  Rep.  654 ;  Firestone  v.  Werner,  1  Ind. 
App.  293,  27  N.  E.  623.     See,  also,  Burnett  v.  Hensley,  118  Iowa,  575, 

92  N.  W.  678. 

12  Belcher  v.  Costello,  122  Mass.  189;  Homer  v.  Perkins,  124  Mass. 
431,  26  Am.  Rep.  677;  Holbrook  v.  Comior,  60  Me.  578,  11  Am.  Rep. 
212 ;  Lyons  v.  Briggs,  14  R.  I.  222,  51  Am.  Rep.  372 ;  Watts  v.  Cum- 
mins, 59  Pa.  84 ;  Buschman  v.  Codd.  52  Md.  207 ;  O'Donnell  &  Duer 
Brewing  Co.  v.  Farrar,  163  111.  471,  45  N.  E.  283 ;  Barrie  v.  .Terome, 
112  111.  App.  329 ;   Vodrey  Pottery  Co.  v.  H.  E.  Home  Co.,  117  Wis.  1, 

93  N.  W.  823 ;    Greene  v.  Society  Anonyme  (C.  C.)  81  Fed.  64 ;   Hau- 


\ 


§§54-55)      CONTRACT   OK    SALE    INDUCED    BY    FRAUD.  177 

value  are  generally  regarded  as  expressions  of  opinion," 
though  representations  of  facts  affecting  the  value, ^*  for  ex- 
ample that  a  third  person  gave  so  much  for  a  thing,"  are  ma- 
terial. And  the  circumstances  may  be  such  as  to  justify  the 
other  party  in  relying  on  a  statement  of  value,  as  where  the 
one  party  has  special  knowledge  or  means  of  knowledge  not 
open  to  the  other,"  or  the  relations  between  them  are  con- 
fidential.^^ By  a  somewhat  fine  distinction,  however,  state- 
ments of  what  the  seller  gave  or  was  offered  for  the  thing  sold 
are  by  some  courts  deemed  to  be  mere  statements  of  value,  on 
which  the  buver  is  not  entitled  to  relv."    In  like  manner,  com- 


sen  V.  Cold  Storage  Co.,  86  Fed,  832.  Clark,  Cont.  (2d  Ed.)  224,  and 
cases  cited. 

13  Gordon  v.  Butler,  105  U.  S.  553,  26  L.  Ed.  1160;  Poland  v. 
Brownell,  131  Mass.  138,  41  Am.  Hep.  215;  Uhler  v.  Seuiple,  20  N.  J. 
Eq.  288;  Schramm  v.  O'Connor,  98  111.  539;  Kennedy  v.  Richard.son, 
70  Ind.  524 ;    Johnson  v.  Seymour.  79  Mich.  150,  44  N.  W.  344. 

Market  value:  Burns  v.  Mahannah,  39  Kan.  87,  17  Pac.  319; 
Cronk  v.  Cole,  10  Ind.  485. 

i<  Chrysler  v.  Canaday,  90  N.  H.  272.  278,  43  Am.  Rep.  166;  Col- 
lins V.  Jackson,  54  Mich.  180,  19  N.  W.  947 ;  Ooolldge  v.  Goddard,  77 
Me.  578,  1  Atl.  831 ;  Smith,  Kline  &  French  Co.  v.  Smith,  166  Pa. 
503,  31  Atl.  343;  Wilson,  Close  &  Co.  v.  Pritchett,  99  Md.  5S3,  58  Atl. 
300. 

15  Belcher  v.  Costello.  122  Mass.  189;  Kilgore  v.  Bruce,  100  Mass. 
130,  44  N.  E.  108 :  Coolidge  v.  Goddard,  77  Me.  578,  1  Atl.  831 ;  Cas- 
well V.  Hunton,  87  Me.  277,  32  Atl.  899. 

isPicard  v.  McCormick,  11  Mich.  08;  Bish  v.  Beatty,  111  Ind. 
403,  12  N.  E.  523;  Murray  v.  Tolman,  102  111.  417,  44  N.  E.  748;  An- 
drews V.  Jackson,  108  Mass.  200,  47  N.  F>.  412,  37  L.  R.  A.  402.  00 
Am.  St.  Rep.  390;  Welch  v.  Olmstead,  90  Mich.  492,  51  N.  W.  .541; 
I^Iaxtcd  V.  Fowler.  94  Mich.  100,  .53  N.  W.  921;  Peck  v.  Jenison,  99 
Mich.  326,  58  N.  W.  012 ;  Stopplcman  v.  Paetz,  75  Wis.  510,  44  N.  W. 
834;  Crane  v.  Elder,  48  Kan.  259,  29  Pac.  151,  15  L.  R.  A.  795; 
Ilirschberg  Optical  Co.  v.  Richards,  02  Mo.  App.  408;  Strand  v.  Grif- 
fith, 97  Fed.  854,  38  C.  C.  A.  444. 

IT  Ilauk  V.  Brownell,  120  111.  101,  11  N.  E.  410;  Baum  v.  Ilolton,  4 
Colo.  App.  400,  36  Pac.  154. 

isMedbury  v.  Watson,  0  Mete.  (Mass.)  249,  259,  39  Am.  Dec.  720; 
Ilcnmier  v.  Cooper,  8  .Mien  (Mass.)  3.34;  Ilolbrook  v.  Connor,  00  Me. 
578,  11  Am.  Rep.  212;  Dillman  v.  Nadlehoflfer,  119  111.  507,  7  N.  E. 
88;  Way  v.  Ryther,  105  Mas.s.  220,  42  N.  E.  1128;  Gassett  v.  Giazior, 
105  Mass.  473,  43  N.  E.  193;  Boles  v.  Merrill.  173  Mass.  491,  .53  N.  El 
894,  73  Am.  St.  Rep.  308;  Cole  v.  Smith,  20  Colo.  500,  58  Pac.  lUSO; 
Tiff.Sales(2d  Ed.)— 12 


178  FKAUD   AND    RETENTION    OF   POSSESSION.  (Ch.  5 

mendatory  expressions,  such  as  men  habitually  use  to  induce 
others  to  enter  into  a  bargain,  known  as  "dealer's  talk,"  are  not 
deemed  representations  of  fact.  "Simplex  commendatio  non 
obligat."  ^*  The  line  between  fact  and  opinion  is  a  narrow  one, 
and,  when  a  statement  may  be  taken  in  either  sense,  it  is  for 
the  jury  to  determine  which  it  is.^°  A  false  representation  by 
the  seller  concerning  the  quality,  character,  or  soundness  of  the 
goods,  if  made  with  knowledge  of  its  falsity  or  without  belief 
in  its  truth,^^  may  be  ground  for  avoiding  the  sale,  provided 
the  circumstances  were  such  that  the  buyer  was  entitled  to 
rely  on  the  representation.^^ 

Mackenzie  v.  Seeberger,  76  Fed.  108,  22  C.  C.  A.  83.  Contra :  Sand- 
ford  V.  Handy,  23  Wend.  (N.  Y.)  260 ;  Van  Epps  v.  Harrison,  5  Hill 
(N.  T.)  63,  40  Am.  Dec.  314 ;  Faircliild  v.  McMaJion,  139  N.  Y.  290, 
34  N.  E.  779,  36  Am.  St.  Rep.  701 ;  Harlow  v.  LaBrum,  82  Hun  (N. 
Y.)  292,  31  N.  Y.  Siipp.  487;  Miller  v.  Buchanan,  10  Ind.  App.  474, 
38  N.  E.  56 ;  Moline  Plow  Co.  v.  Carson,  72  Fed.  3S7,  18  C.  C.  A.  606 ; 
Strickland  v.  Graybill,  97  Va.  602,  34  S.  K  475. 

One  attempting  to  sell  an  express  business  falsely  stated  the  price 
he  paid  for  it,  and  that  another  was  attempting  to  buy  it  at  a  cer- 
tain price,  and  that  the  business  was  earning  a  certain  sum,  and  he 
had  a  stated  number  of  regular  customers,  who  paid  sums  named. 
Held  that,  though  the  two  first-named  representations  were  merely 
"dealer's  talk,"  the  latter  were  material,  and  the  buyer  had  a  right 
to  rely  on  them.     Boles  v.  Merrill,  supra. 

In  Way  v.  Ryther,  supra,  it  was  held  that,  where  the  seller  stat- 
ed that  the  goods  were  billed  to  him  at  a  certain  price,  evidence 
that  he  stated  that  he  could  not  find  the  bill  and  kept  it  from  the 
buyer  to  prevent  him  from  discovering  the  cost  was  admissible  to 
show  fraud.  And  see  Welch  v.  Burdick,  101  Iowa,  70,  70  N.  W.  94 ; 
Strand  v.  Grifiith,  97  Fed.  854,  38  C.  C.  A.  444. 

19  Morse  v.  Shaw,  124  Mass.  59;  Teague  v.  Irwin,  127  Mass.  217; 
Sledge  V.  Scott,  56  Ala.  202 ;  Jackson  v.  Collins,  39  Mich.  557,  561 ; 
Patten  v.  Glatz  (C.  C.)  87  Fed.  283 ;  Terhune  v.  Coker,  107  Ga.  352. 
33  S.  E.  394, 

20  Homer  v.  Perkins,  124  Mass.  431,  433,  26  Am.  Rep.  677;  Kim- 
ball V.  Bangs,  144  Mass.  321,  11  N.  E.  113;  Dawson  v.  Graham,  48 
Iowa,  378. 

21  Hazard  v.  Irwin,  18  Pick.  (Mass.)  95;  Scott  v.  Perrin,  4  Bibb. 
(Ky.)  360 ;  Nelson  v.  INIartin,  105  Pa.  229 ;  Ripley  v.  Chase,  78  Mich. 
126,  43  N.  W.  1097,  18  Am.  St.  Rep.  428 ;    McCorkell  v.  Karhoflf,  90 

22  Bruner  v.  Strong,  61  Tex.  555;  H.  Hirschberg  Optical  Co.  v. 
Michaelson.  1  Neb.  (Unof.)  137,  95  N.  W.  4G1 ;  Hulet  v.  Achey,  39 
Wash.  91,  80  Pac.  1105. 


§§  54   55)      CONTUACT   OH   SALE    INDUCED    BY    FKACD.  171> 

Same — Not  Matter  of  Intention — Intention  Not  to  Pay. 

Again,  an  expression  of  intention  does  not  amount  to  a  state- 
ment of  fact,  nor  does  a  promise;  and  a  representation  that  a 
thing-  is  must  be  distinguished  from  a  promise  that  it  shall  bc.^' 
Yet  there  is  a  distinction  between  a  promise  which  the  promisor 
intends  to  perform  and  one  which  he  intends  to  break.  In  the 
first  place,  he  represents  his  intention  that  something  shall 
take  place  in  the  future;  in  the  second  case,  he  not  only  makes 
a  promise  which  is  ultimately  broken,  but  he  represents  his  ex- 
isting intention — that  is,  he  represents  his  state  of  mind  to  be 
other  than  it  really  is.^*  And  accordingly  it  is  held  that  if  a 
man  buys  goods  on  credit  not  intending  to  pay  for  them,  he 
makes  a  fraudulent  misrepresentation,  and  that  the  seller  may 
rescind  the  sale.^'' 

Iowa,  545,  58  N.  W.  913;  Blytlie  v.  Speake,  23  Tex.  429;  Whitwortli 
V.  Thomas,  83  Ala.  308,  3  South.  781,  3  Am.  St.  Rep.  725;  Spauld- 
ing  V.  Hanscom,  67  N.  H.  401.  32  Atl.  154;  Heuuessey  v.  Damourette, 
15  Colo.  App.  354,  G2  Pac.  229. 

2  8  Loiii,'  V.  Woodman,  58  Me.  49. 

24  Anson,  Cont.  148;    Clark,  Cont.  (2d  Ed.)  223. 

2  6  Load  V.  Green,  15  Mees.  &  W.  216;  Ferguson  v.  Carrinpton,  9 
Barn.  &  C  59 ;  Donaldson  v.  Farwell,  93  U.  S.  631.  23  L.  Ed.  993 ; 
Byrd  v.  Ilall,  ♦41  N.  Y.  646;  Johnson  v.  Monell,  Id.  655;  Stewart 
V.  Emerson,  52  N.  H.  301 ;  Dow  v.  Sanborn,  3  Allen  (Mass.)  181  ; 
Parker  v.  Byrnes,  1  Low.  (U.  S.)  539,  Fed.  Cas.  No.  10,728 ;  Stouten- 
bourgh  V.  Konkle,  15  N.  J.  Eq.  33;  Powell  v.  Bradlee,  9  Gill  &  J. 
(Md.)  220;  Taleott  v.  Henderson,  31  Ohio  St.  162,  27  Am.  Kep.  501; 
Allen  V.  Hartfield,  76  111.  358;  Farwell  v.  Ilanchett,  120  111.  573.  11 
N.  E.  875 ;  Fox  v.  Webster,  46  Mo.  181 ;  Belding  v.  Frankland,  8 
Lea  (Tenn.)  67,  41  Am.  Rep.  630;  Oswego  Starch  Factory  v.  Lendruin. 
57  Iowa,  573,  10  N.  W.  900,  42  Am.  Rep.  53;  Henry  v.  Vliet.  .''.0  Neb. 
138,  54  N.  W.  122,  19  L.  R.  A.  590;  Frisbee  v.  Chickering.  115 
Mich.  185,  73  N.  W.  112;  Cox  Shoe  Mfg.  Co.  v.  Adams.  105  Iowa. 
402.  75  N.  W.  316;  Waterbury  v.  Miller,  13  Ind.  App.  197,  41  N. 
E.  :{S3;  Reager  v.  Kendall  (Ky.)  39  S.  W.  257;  Bugg  v.  Wertheimer- 
Schwartz  Co.,  64  Ark.  12,  40  S.  W.  134;  Seisel  v.  Wells.  90  Ga.  159, 
25  S.  E.  266.  In  Pennsylvania  it  is  held  that  a  mere  intention  not 
to  pay,  though  accompanied  by  insolvency,  is  not  sufficient,  but 
that  there  must  be  artifice,  trick,  or  false  representation.  Smith  v. 
Smith.  21  Pa.  367.  60  Am.  Dec.  51;  Rodman  v.  Thalhelmer,  75  Pa. 
2.32;  Bughman  v.  Bank.  l.">9  Pa.  94,  28  Atl.  209.  In  Alabama  it  is 
declared  that  it  must  appear  (1)  that  the  buyer  was  at  the  time 
insolvent  or  in  failing  circumstances;  (2)  that  he  had  a  precon- 
ceived design  not  to  pay  for  the  goods,  or  no  reasonable  expectatiou 


I 


180  FRAUD   AND    RETENTION    OF   POSSESSION.  (Ch.  5 

The  intention  not  to  pay  must  exist  at  the  time  of  the  sale  -' 
or  contract  to  sell,-'  and  must  be  an  intention  not  to  pay  at 
all.-^  Therefore  the  mere  fact  that  the  buyer  knows  that  he  is 
insolvent  and  fails  to  disclose  the  fact  does  not  constitute 
fraud,  if  he  does  not  buy  intending  not  to  pay.^^  Some  cases, 
indeed,  hold  that  it  is  not  enough  to  constitute  fraud  that  the 
buyer  has  no  reasonable  expectation  of  being  able  to  pay ;  ^° 
but  it  is  generally  held  that  the  absence  of  reasonable  expecta- 
tion of  being  able  to  pay  is  equivalent  to  an  intention  not  to 
pay.^^ 

of  being  able  to  pay  for  them;  and  (3)  that  he  intentionally  con- 
cealed these  facts,  or  made  a  fraudulent  representation  in  regard  to 
them.  Maxwell  v.  Shoe  Co..  114  Ala.  304,  21  South.  1009;  Wilk 
V.  Key,  117  Ala.  285,  23  South.  6. 

2  6  Starr  v.  Stevenson,  91  Iowa,  684,  60  N.  W.  217;  John  V.  Far- 
well  Co.  V.  Linn,  59  111.  App.  245;  Syracuse  Knitting  Co.  v.  Blancli- 
ard,  69  N.  H.  447,  43  Atl.  637;  Leedom  v.  Mayer,  114  Wis.  267,  90 
N.  W.  169.  And  see  Skinner  v.  Hoop  Co.,  119  Mich.  467,  78  N.  W. 
547,  75  Am.  St.  Rep.  413 ;  Brooks  v.  Paper  Co.,  94  Tenn.  701,  31  S. 
W.  160.     Cf.  Whitten  v.  Fitzwater,  129  N.  T.  626,  29  N.  E.  298. 

27  Foerster  v.  Gallinger,  62  Hun  (N.  Y.)  439,  17  N.  Y.  Supp.  144. 

28  Burrill  v.  Stevens,  73  Me.  395,  40  Am.  Rep.  366;  Starr  v. 
Stevenson,  91  Iowa,  684,  60  N.  W.  217;  Armstrong  v.  Lewis,  38  111. 
App.  164 ;  Beebe  v.  Hatfield,  67  Mo.  App.  609 ;  Strickland  v.  Willis 
(Tex.  Civ,  App.)  43  S.  W.  602. 

2  9  Cross  V.  Peters,  1  Greenl.  (Me.)  376,  10  Am.  Dec.  78;  Morrill 
V.  Blackman,  42  Conn.  324;  Bell  v.  Ellis,  33  Cal.  620;  Mears  v. 
Waples,  3  Houst.  (Del.)  581 ;  Carnahan  v.  Bailey  (C.  C.)  28  Fed.  519 ; 
Kelsey  v.  Harrison,  29  Kan.  143;  Dalton  v.  Thurston,  15  R.  I.  418, 
7  Atl.  112,  2  Am.  St.  Rep.  905;  Illinois  Leather  Co.  v.  Flynn,  108 
Mich.  91,  65  N.  W.  519;  Kitson  v.  Farwell,  132  111.  327,  23  N.  E. 
1024;  Edelhoff  v.  Manufacturing  Co.,  86  Md.  595,  39  Atl.  314; 
Sprague,  Warner  &  Co.  v.  Kempe,  74  Minn.  465,  77  N.  W.  412 ;  Gavin 
V.  Armistead,  57  Ark.  574,  22  S.  W.  431,  38  Am.  St.  Rep.  262 ;  Halla- 
cher  V.  Henlein  (Tenn.  Ch.  App.)  39  S.  W.  869 :  Fulton  v.  Gibian.  98 
Ga.  224,  25  S.  E.  431 ;  West  v.  Graff,  23  Ind.  App.  410,  55  N.  E.  506 ; 
Sinnott  v.  Bank,  164  N.  Y.  380,  58  N.  E.  286 ;  Stein  v.  Hill,  100  Mo. 
App.  38,  71  S.  W.  1107. 

30  Biggs  v.  Barry,  2  Curt.  (U.  S.)  2."»9,  Fed.  Cas.  No.  1.402  :  Man- 
heimer  v.  Harrington,  20  Mo.  App.  297 ;  Burchiuell  v.  Hirsh,  5  Colo. 
App.  500,  39  Pac.  352 ;  Dorman  v.  Weakley  (Tenn.  Ch.  App.)  39  S.  W. 
890;    Syracuse  Knitting  Co.  v.  Blanchard.  69  N.  H.  447,  43  Atl.  037. 

31  Davis  v.  Stewart  (C.  C.)  8  Fed.  803;  Jaffrey  v.  Brown  (C.  C.) 
29  Fed.  470 ;  Whitten  v.  Fitzwater,  129  N.  Y.  626,  29  N.  E.  298 ;  Wil- 
mot  V.  Lyon,  49  Ohio  St.  290,  34  N.  E.  720 ;   Slagle  &  Co.  v.  Goodnow, 


§§  54-55)      CONTKACT    OU    SALE    INDUCED    BY    FKAUD.  1^1 

Same — Representation  of  Buyer  as  to  Pinancial  Condition. 

In  a  sale  on  credit,  a  representation  by  the  buyer  as  to  his 
solvency  or  financial  comlition  is  material,  and  if  it  is  knowinii^- 
ly  false,  or  is  made  without  belief  in  its  truth,  and  induces  the 
sale,  it  constitutes  fraud. ^^  The  representation  must,  of 
course,  be  of  fact,  and  not  of  opinion,"  and  must  not  relate  to 
something  to  be  donc.^* 

Same — Not  Matter  of  Law. 

Finally,  a  misrepresentation  of  law  does  not  ordinarily  give 
rise  to  an  action  of  deceit  or  make  a  contract  voidable.^ ^ 
Private  right  of  ownership,  however,  although  it  may  be  the 
result,  also,  of  a  matter  of  law,  is  a  matter  of  fact;  and  if  the 

45  Minn.  531,  48  N.  W.  402;  Eaclhofr  v.  Mamifacturiiig  Co.,  8G  Md. 
595,  39  Atl.  314;  Reid  v.  Lloyd,  52  Mo.  App.  278;  McKenzie  v.  Roths- 
child. 119  Ala.  419.  24  South.  71G. 

32.Tudd  V.  Weber,  55  Conn.  2(J7,  11  Atl.  40;  Cincinuati  Cooperage 
Co.  V.  Gaul,  170  I'a.  .545.  .32  Atl.  1093;  McKinney  v.  Bank.  36  Neb. 
029.  54  N.  W.  903 ;  Cu.\  Shoe  Co.  v.  Adams.  105  Iowa,  402,  75  N.  W. 
310;  Clark  v.  William  Muiiroe  Co.,  127  Mieh.  300,  80  N.  W.  81G; 
IJell  V.  Kaufman,  9  Colo.  App.  259.  47  Pac.  1035;  McKenzie  v.  Weine- 
uian,  116  Ala.  194,  22  South.  508;  Rugg  v.  Shoe  Co..  04  Ark.  12,  40 
S.  W.  134;  Werthheinier  Schwartz  Shoe  Co.  v.  Faris  (Tenn.  Ch.  App.) 
40  S.  W.  330;  Fitchard  v.  Doheny,  93  App.  Div.  9,  80  N.  Y.  Supp. 
904.  A  representation  made  after  sale  is,  of  course,  immaterial. 
Coffin  V.  Hollister,  54  Hun  (N.  Y.)  039,  7  N.  Y.  Supp,  734,  allirmotl 
124  N.  Y.  044,  20  N.  E.  812;  Roliinson  v.  Levi,  81  Ala.  1.34.  1  Smitli. 
5.54;  Manhattan  Brass  Co.  v.  Reger.  108  Pa.  044,  32  Atl.  04.  But. 
if  made  before  the  sale  is  consunmiatcd,  the  seller  may  rescind. 
I'.liss  V.  Sickles,  00  llun,  0:?.3,  21  N.  Y.  Supp.  273,  ullinned  142  N.  Y. 
047,  36  N.  E.  1004;    post,  p.  182. 

33  Franklin  Sugar  Refining  Co.  v.  Collier,  89  Iowa,  09,  .50  X.  W. 
279 ;  White  v.  Fitch,  19  R.  I.  087,  30  Atl.  425 ;  Louis  F.  Fromer  &  Co. 
V.  Stanley.  95  Wis.  50,  09  N.  W.  820:  William  P..  (Jrimes  Pry-Goods 
Co.  V.  Jordan.  7  Kan.  App.  192,  .53  Pac.  ISO;  Syracuse  Knitting  Co. 
V.  Blanchard.  09  N.  11.  447,  43  Atl.  037. 

34  Colm  V.  Broadliead,  51  Neb.  834,  71  N.  W.  747 ;  Louis  F.  Fromer 
&  Co.  V.  Stanley,  95  Wis.  50,  09  N.  W.  820;  Skinner  v.  Hoop  Co., 
119  Mich.  407,  78  N.  W.  .547,  75  Am.  St.  Rep.  413. 

3  5  Upton  V.  Ti-ibikock,  91  U.  S.  45,  49,  23  L.  Ed.  203;  Starr  v. 
Bennett.  5  Hill  (N.  Y.)  303;  Townsend  v.  Cowles,  31  Ala.  428;  Fish 
V.  Cleland.  33  111.  2.38;  Clem  v.  Railn.ad  Co..  9  Ind.  488,  08  Am.  Dec. 
053;  People  v.  Board  of  Sup'rs,  27  Cal.  655;  Clark,  Cont  (2d  Ed.) 
226. 


182  FRAUD  AND   RETENTION   OF   POSSESSION.  (Ch.  5 

seller  fraudulently  represents  the  goods  to  be  his  own,  when 
they  are  not,  the  buyer  may  avoid  the  contract  on  that  ground.^* 

The  Representation  nmst  he  Made  with  Knowledge  of  Its 
Falsity^  or  in  Reckless  Disregard  of  the  Truth. 
A  false  statement,  made  by  one  who  believes  the  truth  of 
■what  he  asserts,  though  it  may  warrant  avoidance  for  mis- 
take,^'' or  may  amount  to  a  warranty,^^  is  not  fraudulent.^® 
A  false  statement,  made  without  knowledge  of  its  falsity,  is  not 
as  a  rule  fraudulent.*"  But  the  mere  absence  of  belief  is 
enough;  for,  if  a  man  states  as  true  that  of  which  he  is  ig- 
norant, he  must  be  held  as  responsible  as  if  he  had  asserted 
what  he  knew  to  be  untrue.  Therefore,  if  a  man  makes  a  rep- 
resentation recklessly,  without  knowledge  whether  it  be  true 
or  false,  and  it  is  actually  false,  his  liability  is  the  same  as  if  he 
knew  it  was  false;  *^  and,  if  he  represents  a  fact  as  true  of  his 

36  Case  V.  Hall,  24  Wend.  (N.  Y.)  102,  35  Am.  Dec.  605;  Sweetman 
V.  Prince,  62  Barb.  (N.  Y.)  256;  Simpson  v.  Wiggin,  3  Woodb.  &  M. 
<U.  S.)  413,  Fed.  Oas.  No.  12,887 ;  Hale  v.  Philbrick,  42  Iowa,  81 ;  Hal- 
sell  V.  IMusgrave,  5  Tex.  Civ.  App.  476,  24  S.  W.  358;  ante,  p.  52. 
As  to  warranty  of  title,  see  post,  p.  242.  Fraudulent  representation 
as  to  lien  or  incumbrance.  Merritt  v.  Robinson,  35  Ark.  483 ;  Steven- 
son V.  Marble  (C.  C.)  84  Fed.  23.  Failure  to  disclose  want  of  title 
may  constitute  fraud.    Abbott  v.  Marshall,  48  Me.  44. 

3  7  Ante,  p.  .52  et  seq. 

3  8  Post,  p.  236  et  seq. 

89  Benj.  Sales,  §  429. 

40  Collins  V.  Evans,  5  Q.  B.  820;  Ormrod  v.  Huth,  14  Mees.  &  W. 
651 ;  Lord  v.  Goddard,  13  How.  (U.  S.)  198,  14  L.  Ed.  Ill ;  King  v. 
Eagle  Mills,  10  Allen  (Mass.)  548 ;  Pettigi-ew  v.  Chellis,  41  N.  H.  95 ; 
Allen  Wanamaker,  31  N.  J.  Law,  370;  Bigler  v.  Flickinger,  55 
Pa.  279 ;  Lamm  v.  Association,  49  Md.  233,  33  Am.  Rep.  246 ;  Mason 
V.  Chappell,  15  Grat.  (Va.)  572;  Kimbell  v.  Moreland,  55  Ga.  164; 
Parmlee  v.  Adolpb,  28  Ohio  St.  10;  Tone  v.  Wilson,  81  111.  529;  Greg- 
ory V.  Schoenell,  55  Ind.  101;  Rawson  v.  Harger,  48  Iowa,  269; 
Mamlock  v.  Fairbanks,  46  Wis.  415,  1  N.  W.  167,  32  Am.  Rep.  716 ; 
Merriam  v.  Lumber  Co.,  23  Minn.  314 ;  Rightor  v.  Roller,  31  Ark. 
171 ;  Clark,  Cont.  (2d  Ed.)  229.  But  see  Holcomb  v.  Noble,  69  Mich. 
S96,  37  N.  W.  497;   Totten  v.  Burhans,  91  Mich.  499,  51  N.  W.  1119. 

41  Western  Bank  of  Scotland  v.  Addie,  L.  R.  1  H.  L.  Sc.  145; 
Reese  River  Silver  Min.  Co.  v.  Smith,  L.  R.  4  H.  L.  64;  Weir  v. 
Bell,  3  Exch.  Div.  238,  242;  Nettleton  v.  Beach,  107  Mass.  499; 
Fisher  v.  Mellen,  103  Mass.  503 ;  Cole  v.  Cassidy,  138  Mass.  437,  52 
Am.  Rep.  284;  Hammond  v.  Pennock,  61  N.  Y.  145;  Meyer  v.  Amidon, 
45  N.  Y.  169 ;    Bower  v.  Fenn,  90  Pa.  359,  35  Am.  Rep.  662 ;    Cowley 


§§  54-55)       CONTUACT    OK    SALE    INDUCKD    BY    FUAUU.  183 

own  knowledge  when  he  has  no  knowledge,  it  is  immaterial 
that  he  believed  it  to  be  true.^^  And  it  is  generally  held  in  this 
country  that  an  unqualified  statement  of  a  material  fact  sus- 
ceptible of  knowledge  implies  a  representation  of  knowledge, 
and  that  if  the  representation  be  false  it  is  fraudulent.'*^  In 
England  and  in  some  states  it  is  held  that  a  statement  made  in 
the  honest  belief  that  it  is  true  is  not  fraudulent,  notwith- 
standing absence  of  reasonable  grounds  for  believing  it  true.** 

Motive. 

If  the  representation  was  fraudulent  as  the  term  has  above 
been  explained,  it  is  immaterial  that  the  motive  was  innocent.*"^ 
Must  be  Intention  That  Representation  should  he  Acted  on — 

Representation  to  Commercial  Agency. 

The  representation  must  be  made  with  the  intention  that  it 
should  be  acted  on.*^    Another  statement  of  this  rule  is  that  the 

V.  Smyth,  46  N.  J.  Law,  380,  50  Am.  Rep.  432 ;  Smith  v.  Newton,  59 
Ga.  113;  Foard  v.  McComb,  12  Bush  (Ky.)  723;  Frenzel  v.  Miller. 
37  lud.  1,  10  Am.  Rep.  62 ;  Parmlee  v.  Adolph.  28  Ohio  St.  10 ;  Cotz- 
hausen  v.  Simon,  47  Wis.  103,  1  N.  W.  473 ;  Walsh  v,  Morse,  80  Mo. 
509. 

42  Litchfield  v.  Hutchinson,  117  Mass.  195;  Oabot  v.  Christie,  42 
Vt.  121,  1  Am.  Rep.  313;  Marsh  v.  Falker,  40  N.  Y.  562;  Dulaney 
V.   Rogers,   64   Mo.   201. 

4  3  Chatham  Furnace  Oo.  v.  Moffatt,  147  Mass.  403,  18  N.  E.  168,  9 
Am.  St.  Rep.  727  (cf.  Goodwin  v.  Trust  Co.,  152  Mass.  189.  2o  N.  E. 
100) ;  Bullitt  V.  Farrar,  42  Minn.  8,  43  N.  W.  566,  6  L.  R.  A.  149. 
18  Am.  St.  Rep.  485 ;  Montreal  River  Lumber  Co.  v.  Mihllls,  80  Wis. 
540,  50  N.  W.  507;  Beetle  v,  Anderson,  98  Wis.  5,  73  N.  W.  560; 
Hadcock  v.  Osmer,  153  N.  Y.  604,  47  N.  E.  923;  Hamlin  v.  Abell, 
120  Mo.  188,  25  S.  W.  516  (cf.  Bank  of  Atchison  County  v.  Byers, 
139  Mo.  627,  41  S.  W.  325) ;  Olcott  v.  Bolton,  50  Neb.  779,  70  N.  W. 
366;  Braley  v.  Powers,  92  Me.  203,  42  Atl.  362;  Walters  v.  Eaves, 
105  Ga.  584,  32  S.  E.  609 ;  Simon  v.  Rubber  Shoe  Co.,  105  Fed.  573, 
44  C.  0.  A.  612,  52  L.  R.  A.  745;  Clark,  Oont.  (2d  Ed.)  230;  9  Qyc. 
423. 

4  4  Derry  v.  Peek,  14  App.  Gas.  337;  Merwin  v.  Arbuckle,  81  111. 
.501;  Lamberton  v.  Dunham,  165  Pa.  129,  30  Atl.  716;  Scroggin  v. 
Wood,  87  Iowa,  497,  54  N.  W.  437;    Anson,  Cont.  (8th  Ed.)  172. 

45  Polhlll  V.  Walter.  3  Barn.  &  Adol.  114;  Peek  v.  Gurney,  L.  R.  6 
H.  L.  409;  Hammond  v.  Pennock,  61  N.  Y.  145;  Cowley  v.  Smyth, 
46  N.  J.  Law,  380.  50  Am.  Rep.  432;    Clark,  Cont.  (2d  Ed.)  232. 

46  Buschman  v.  Codd,  52  Md.  202;  Humphrey  v.  Merriam,  02  Minn. 
197,  20  N.  W.  138 ;   Carter  v.  Harden,  78  Me.  528,  7  Atl.  392 ;    Thorp 


184  FRAUD   AND    RETENTION    OF   POSSESSION.  <'Ch.  5 

representation  must  be  made  as  part  of  the  same  transaction.*^ 
If  a  representation  is  made  by  one  of  the  parties  to  the  contract, 
the  intention  that  it  should  be  acted  on  will  generally  be  mani- 
fest. The  representation  need  not,  however,  be  made  directly 
to  the  injured  party.**  Thus  a  statement  made  by  the  buyer 
to  a  commercial  agency  for  the  purpose  of  being  communicated 
to  its  patrons  and  thereby  obtaining  credit,  if  communicated 
to  the  seller,  is  a  representation  on  which  he  may  rely,*^  al- 

V.  Smith,  18  Wash.  277,  51  Pac.  3S1 ;  Holt  v.  Sims,  94  Minn.  157, 
102  N.  W.  386. 

*7  Pollock,  Cont.  (3rd  Eel.)  545;  Barnett  v.  Barnett,  83  Va.  504, 
2  S.  E.  733. 

48  Barry  v.  Croskey,  2  Johns.  &  H.  1,  17,  per  Wood,  V.  C,  at  page 
22;  Langridge  v.  Levy,  2  Mees.  &  W.  519;  Peek  v.  Gurney,  L.  R. 
6  H.  L.  377 ;  Wells  v.  Cook,  16  Ohio  St.  67,  88  Am.  Dee.  436 ;  Bank 
of  Montreal  v.  Thayer  (C.  C.)  7  Fed.  623. 

48  Fechheimer  v.  Baum  (0.  C.)  37  Fed.  167,  2  L.  B.  A.  153 ;  Furry 
V.  O'Connor,  1  Ind.  App.  573,  28  N.  E.  103;  Emerson  v.  Spring  Co., 
100  Mich.  127,  59  N.  W.  659;    Gainseville  Nat.  Bank  v.  Bamberger, 

77  Tex.  48,  13  S.  W.  959,  19  Am.  St.  Rep.  738 ;  John  V.  Farwell  Co. 
V.  Boyce,  17  Mont.  83,  42  Pac.  98;  Charles  P.  Kellog  Co.  v.  Holm, 
82  Minn.  416,  85  N.  W.  159;  Soper  Lumber  Co.  v.  Halsted  &  Har- 
luount  Co.,  73  Conn.  547,  48  Atl.  425;  George  D.  Mashbum  &  Co. 
V.  Dannenberg  Co.,  117  Ga.  567,  44  S.  E.  97;  Ernst  v.  Cohn  (Tenn. 
Ch.  App.)  62  S.  W.  186 ;  Courtney  v.  Manufacturing  Co.,  97  Md.  499, 
55  Atl.  614,  99  Am.  St.  Rep.  456 ;   Tennent  Shoe  Co.  v.  Stovel  &  Brand, 

78  S.  W.  417,  25  Ky.  Law  Rep.  1615 ;  Tindle  v.  Birkett,  57  App.  Div. 
450,  67  N.  Y.  Supp.  1017,  affirmed  171  N.  Y.  520,  64  N.  E.  210.  89 
\m.  St.  Rep.  822;  Arnold  v.  Richardson,  74  App.  Div.  581,  77  N.  Y. 
Supp.  763 ;  In  re  Epstein  (D.  C.)  109  Fed.  874. 

One  who  makes  a  statement  to  an  agency  is  not  bound  to  furnish 
it  with  a  statement  of  a  change  in  his  condition  not  amounting  to 
insolvency.  Cortland  Mfg.  Co.  v.  Piatt,  S3  Mich.  419,  47  N.  W.  330; 
Reid,  Murdock  &  Co.  v.  Kempe,  74  Minn.  474,  77  N.  W.  413.  And 
see  Burchiuell  v.  Hirsh,  5  Colo.  App.  500,  39  Pac.  352 ;  Strickland  v. 
Willis  (Tex.  Civ.  App.)  43  S.  W.  602.  Otherwise  if  he  has  become 
insolvent,  or  his  condition  has  become  such  that  he  will  be  obliged  to 
suspend.  Mooney  v.  Davis,  75  Mich.  188,  42  N.  W.  802,  13  Am.  St. 
Rep.  425.  And  see  Boaz  v.  Manufacturing  Co.  (Tex.  Civ.  App.)  40 
S.  W.  866. 

Failure  to  report  the  truth,  when  he  knows  a  false  rating  is  being 
carried  on  the  books  of  the  agency,  is  fraudulent.  Taylor  v.  Mills 
Co.,  47  Ark.  247,  1  S.  W.  283;  Frisbee  v.^Chickeriug,  115  Mich.  185, 
73  N.  W.  112;  P.  Cox  Shoe  Mfg.  Co.  v.  Adams,  105  Iowa,  402,  75  N. 
W.  310. 


§§  54-55)      CONTKACT   OK    SALK    INULCKD    BV    FKAUD.  1S5 

though  the  buyer  is,  of  course,  not  responsible  for  representa- 
tions made  by  the  agency  based  on  information  not  furnished 
by  liimself.""  In  order  to  entitle  the  seller  to  rely  on  a  repre- 
sentation as  to  the  buyer's  financial  condition,  the  representa- 
tion must  be  made  to  himself  or  to  a  third  person  for  the  pur- 
pose of  being  communicated.'^  Whether  a  statement  may  be 
regarded  as  a  representation  of  financial  standing  at  a  later 
date  depends  on  the  circumstances  of  the  particular  case.°* 

The  Rcprcsctitation  must  be  Material  and  must  Induce  the  Sale. 
A  material  representation  is  one  which  would  alTect  the  judg- 
ment of  a  reasonable  man  governing  himself  by  the  principles 
on  which  men  in  practice  act  in  the  kind  of  business  on  hand.''' 
If  such  an  untrue  statement  has  been  made  and  was  in  fact  an 
inducement  to  the  other  party  to  enter  into  the  contract,  it  is 
unimportant  that  it  was  not  the  sole  inducement;  but  it  is 
enough  if  it  was  a  material  element  in  influencing  him  to  enter 
into  it."*     If  the  representation  was  such  that  it  might  induce 

60  Macullar  v.  McKinley,  99  N.  Y.  333,  2  N.  E.  9;  Wachsmuth  v. 
Martini,  ^'A  III.  nin.  39  N.  B.  329;  P.  Cox  Shoe  Mfg.  Co.  v.  Adams. 
iur>  Iowa.  -iUL'.  75  N.  W.  310;  Hiller  v,  Ellis,  72  Miss.  701,  IS  South.  95. 
41  L.  R.  A.  707;  Cream  City  Hat  Co.  v.  Tollinger,  02  Neb.  98,  80  N. 
W.  921;  Berlcson  v.  Iloldman.  58  Neb.  595,  79  N.  W.  102;  In  re 
Roalswick  (D.  C.)  110  Fed.  039. 

51  Van  Kleek  v.  Leroy,  4  Abb.  Dec.  (N.  Y.)  479;  Bach  v.  Tii<k.  57 
Hun  (N.  Y.)  5S8.  10  N.  Y.  Supp.  88-1,  allirmed  120  N.  Y.  53.  20  N.  B. 
1019;  Bli&s  V.  Sickles,  GO  Iluu  (N.  Y.)  033,  21  N.  Y.  Sui.p.  273,  af- 
firmed 142  N.  Y.  647,  30  N.  E.  1004;  Staver  &  Abbott  Mfg.  Co.  v. 
Coe,  49  111.  App.  420;  McKenzie  v.  Weineman.  110  Ala.  194.  22  South. 
508.  Cf.  Silberman  v.  Munroe,  104  Mich.  3r.2.  02  N.  W.  555;  Hamil- 
ton-Brown Shoe  Co.  V.  Milliken,  02  Neb.  110,  80  N.  W.  913. 

02  Morris  v.  Talcott.  90  N.  Y.  107;  Howell  v.  Berger,  19  Misc.  Rep. 
315.  44  N.  Y.  Supp.  259;  Goldsmith  v.  Stern  (Sup.)  84  N.  Y.  Supp. 
809. 

SUitement  to  commercial  agency.  Ilumplirey  v.  Smith,  7  App.  Div. 
442.  39  N.  Y.  Supp.  1055;  Sehrara  v.  Strouse  (Tex.  Civ.  App.)  28  S. 
W.  202;  Nicholls  v.  McShane,  16  Colo.  App.  105.  04  Pac.  37.");  Wal- 
drop  V.  "Wolff.  114  Ga.  010.  40  S.  E  830;  George  D.  Masliburu  & 
Co.  V.  Dannenberg  Co.,  117  Ga.  .507.  44  S.  E.  97. 

68  Pol.  Gout.  528;  See  Greenleaf  v.  Gerald.  94  Me.  91,  40  Atl.  799. 
50  L.  R.  A.  542.  SO  Am.  St.  Rep.  377. 

5*  SaCford  v.  Grout,  120  Mass.  20;  McAleer  v.  Horsey,  35  Md.  439; 
Ruff  V.  Jarrett,  94  111.  475;  Muliiic-.Milburn  Co.  v.  Franklin,  .37  Minn. 
137.  .^3  N.  W.  323;    Ilahlo  v.  Grant,  50  Hun,  049,   10  N.  Y.    Supp. 


186  FRAUD   AMD    RETENTION    OF   POSSESSION.  (Ch.  5 

the  other  party  to  enter  into  the  contract  on  the  faith  of  it, 
it  is  a  fair  inference  that  he  actually  acted  in  reliance  upon 
it.°°  And,  if  he  actually  relies  upon  the  representation,  the 
fact  that  he  had  means  of  knowledge  which,  if  used,  would  have 
led  to  a  discovery  of  the  untruth  will  not  bar  him  of  his  rem- 
edy/® The  mere  fact  that  he  obtained  other  information,  if 
it  did  not  disclose  the  falsity  of  the  representation,  is  im- 
material.°'^ 

But,  however  false  or  dishonest  the  representations  may  be 
which  are  used  to  induce  a  party  to  enter  into  a  contract,  they 
do  not  constitute  a  fraud  if  he  is  not  deceived ;  for  under  such 
circumstances  the  inducement  or  motive  is  not  the  representa- 
tions, which  are  not  believed,  but  some  independent  motive. ''^ 
The  representations  must  be  relied  upon.^^    For  the  same  rea- 

188,  affirmed  132  N.  Y.  593,  30  N.  B.  1151;  Higbee  v.  Trumbauer,  112 
Iowa,  74,  83  N.  W.  812;  French  &  American  Importing  Co.  v.  Drug 
Co.,  75  Ark.  95,  86  S.  W.  836. 

65  Smith  V.  Chadwick,  9  App.  Cas.  187;  Eedgrave  v.  Hurd,  20  Ch. 
Div.  1;  Holbrook  v.  Bin-t,  22  Pick.  (Mass.)  546;  Hicks  v.  Stevens. 
121  III.  186.  11  N.  E.  241;  Garrison  v.  Electrical  Works,  59  N.  J. 
Eq.  440,  45  Atl.  612. 

66  Kedgrave  v.  Hurd,  20  Ch.  Div.  1;  Jackson  v.  Collins,  39  Mich. 
557;  Kendall  v.  Wilson,  41  Vt.  567;  Stewart  v.  Stearns,  63  N.  H. 
99,  56  Am.  Rep.  496 ;  Union  Nat.  Bank  v.  Hunt,  76  Mo.  439. 

57  Olcott  V.  Bolton,  50  Neb.  779,  70  N.  W.  366;  Cabauess  v.  Hol- 
land, 19  Tex.  Civ.  App.  383,  47  S.  W.  379;  Light  v.  Jacobs,  183  Mass. 
206,  66  N.  E.  799. 

If  the  buyer  relies  on  an  examination  or  test  made  by  himself  or 
another,  he  does  not  rely  on  the  representation.  Howell  v.  Biddle- 
com,  62  Barb.  (N.  Y.)  131;  Hagee  v.  Grossman,  31  Ind.  223;  Haley 
V.  Manning,  2  Tex.  Civ.  App.  17,  21  S.  W.  711;  Brewer  v.  Arantz, 
124  Ala.  127,  26  South.  922. 

58  Gunby  v.  Sinter,  44  Md.  237;  Phipps  v.  Buckman,  30  Pa.  401; 
Gregory  v.  Schoenell,  55  Ind.  101;  Sledge  v.  Scott,  56  Ala.  202;  Smith 
V.  Newton,  59  Ga.  113.  If  the  buyer  accepts  the  goods  with  knowl- 
edge of  the  fraud,  he  cannot  repudiate  the  contract.  Baird  v.  City 
of  New  York,  96  N.  Y.  567;  Thompson  v.  Libby,  36  Minn.  287,  31 
N.  W.  52;  Norfolk  &  New  Brunswick  Hosiery  Co.  v.  Arnold,  49  N. 
J.  Eq.  390,  23  Atl.  514;  W.  W.  Kimball  Co.  v.  Raw,  7  Kan.  App. 
17,  51  Pac.  789. 

69  Ming  v.  Woolfolk,  110  U.  S.  .509.  6  Sup.  Ct.  489,  29  L.  Ed.  740: 
Ha  una  v.  R.iyl)urn,  84  111.  533;  Iloldom  v,  Ayer,  110  111.  448;  Lil- 
ienthal  v.  Browing  Co.,  154  Mass.  185,  28  N.  E.  151,  12  L.  R.  A. 
821.  2G  Am.  St.  Rep.  234. 

The  fact  that  a  considerable  time  has  elapsed  after  the  representa- 


§§  5-1-55)      CONTKACT   OR    SALK    INDl'C  KD    BY    FKAID.  1S7 

son,  if  the  attempted  fraud  dues  not  come  to  the  knowledge  of 
the  other  party,  it  will  not  avail  him  in  avoidance  of  the  con- 
tract. Thus  where  the  seller  inserted  a  metal  plug  to  conceal 
a  weak  spot  in  a  gun  manufactured  to  the  order  of  the  buyer, 
who  took  it  without  inspection,  it  was  held  that  the  attempted 
fraud  did  not  exonerate  him  from  paying  for  the  gun ;  since, 
although  the  seller  intended  to  deceive  him,  he  had  in  fact  not 
been  deceived.'"  If  the  action  is  for  deceit,  damages  from  the 
fraud  must  be  proved.®^ 

Representations  Where  Means  of  Knoivledge  are  at  Hand. 

Many  cases  lay  down  the  rule  broadly  that,  if  the  means  of 
knowledge  are  at  hand  and  equally  available  to  both  parties, 
the  buyer  will  not  be  heard  to  say  that  he  has  been  deceived.'* 
But  it  seems,  on  principle,  that  a  person  cannot  escape  the 
effect  of  his  fraudulent  representation  on  the  ground  of  the 
credulity  of  the  injured  party  or  of  his  negligence  in  failure  to 
ascertain  the  facts. °^  And  it  is  accordingly  very  generally 
held  that,  if  the  buyer  actually  relies  on  the  seller's  representa- 
tion, the  fact  that  he  had  means  of  knowdedge  which,  if  used, 
would  have  led  to  a  discovery  of  the  untruth,  will  not  bar 
him  of  his  remedy.'* 

lion  before  tbe  contract  was  entered  into  does  not  necessarily  show 
that  it  was  not  relied  on.  Seuver  v.  Dinglej-,  4  Me.  306;  Reeve  v. 
Dennett,  145  Mass.  23,  11  N.  E.  U38;  Chisholm  v.  Eisenhuth,  69  App. 
Div.  134.  74  N.  Y.   Supp.  496. 

«o  Horsfall  v.  Thomas,  1  Hurl.  &  C.  90.  See  remarks  on  this  case 
in  Anson,  Cont.  152. 

61  Pasley  v.  Freeman,  3  Term  R.  51;  2  Smith,  Lead.  Cas.  (Sth 
Ed.)  66;  Brown  v.  Blunt.  72  Me.  415;  Weaver  v.  ^Yaliace,  9  N.  J. 
Law.  251. 

6  2  Slaughter  v.  Gerson,  13  Wall.  (U.  S.)  379,  20  L.  Ed.  027;  Au- 
scliutz  v.  Miller  (C.  C.)  20  Fed.  376;  Brown  v.  Leach,  107  Mass.  364; 
Poland  V.  Browuell,  131  Mass.  13S.  41  Am.  Rep.  215;  Catling  v. 
Newell,  12  Ind.  118;  Journal  Printing  Co.  v.  Maxwell,  1  Pennewlll 
(Del.)  511.  43  Atl.  615;  Griffith  v.  Strand.  19  Wash.  (iS6,  54  Pac.  613. 
See  Whiting  v.  Price,  172  Mass.  24(^),  51  N.  E.  1084,  70  Am.  St.  Rep. 
262.  per  Holmes,  J.;    Clark,  Cont.  (2d  Ed.)  228. 

63  Clark,  Cont.  (2d  Ed.)  228. 

«*  Hale  V.  Philbrick.  42  Iowa,  81;  Chamborliu  v.  Fuller,  59  Vt 
247,  9  Atl.  832;  Burroughs  v.  <5uano  Co.,  81  Ala.  255.  1  South.  212; 
Fargo  Gas  &  Coke  Co.  v.  Electric  Co..  4  N.  D.  210.  59  N.  W.  1066.  37 
L.  R.  A.  593;    Strand  v.  Griffith,  97  Fed.  854,  38  C.  C.  A.  444. 


188  FRAUD   AND   RETENTION    OF   POSSESSION.  (Ch.  5^ 


REMEDIES    OF    DEFRAUDED    PARTY. 

56.  ELECTION  TO  AFFIRM  OR  RESCIND.      The  defrauded 

party  may: 

(1)  Affirm   the    contract    or    sale,    and   recover    damages    for 

the  fraud  in   an  action   of  deceit,   or,   if   sued  on  the 
contract,  set  up  the  fraud  in  reduction  of  the  demand. 

(2)  Rescind   the   contract   or   sale  and   recover  'what   he   has 

parted  -with,  or  set  up  the  rescission  in  defense  of  an 
action  on  the   contract. 

57.  BONA  FIDE  PURCHASERS.    A  bona  fide  purchaser  for 

value  from  the  fraudulent  buyer  acquires  an  indefeas- 
ible title. 

Election  to  Affirm  or  Rescind. 

A  contract  induced  by  fraud  is  not  void,  but  only  voidable, 
at  the  option  of  the  party  defrauded;  in  other  words,  it  is 
valid  until  rescinded.  It  is  for  the  party  defrauded  to  elect 
whether  he  will  be  bound.® ^  But,  if  he  affirms  the  contract,  he 
must  affirm  it  in  all  its  terms.  Thus  a  seller  who  has  been  in- 
duced by  fraud  to  sell  on  credit  cannot  sue  for  the  contract  price 
before  the  expiration  of  the  credit,  but  must  rescind,  and  sue 
in  trover  or  replevin. ®®  When  the  contract  is  once  affirmed, 
the  election  is  completely  determined,®^    After  affirmance,  the 

C5  Rawlins  v.  Wickham,  3  De  Gex  &  J.  304,  322;  Clough  v.  Lon- 
don &  N.  W.  Ry.  Co.,  L.  R.  7  Exch.  26;  Union  Stock-Yards  &; 
Transit  Co.  v.  Mallory,  Son  &  Zimmerman  Co.,  157  111.  554,  41  N. 
E.  888,  48  Am.  St.  Rep.  341;  Wilson  v.  Hundley,  96  Va.  96,  30  S.  E. 
492,  70  Axn.  St.  Rep.  837.  And  see  cases  cited  note  66 ;  infra ;  Clark. 
Cont   (2d  Ed.)   234. 

fi6  Ferguson  v.  Carrington,  9  Barn.  &  C.  59;  Emma  Silver  Min.  Co. 
V.  Mining  Co.  (C.  C.)  7  Fed.  401;  Adler  v.  Fen  ton,  24  How.  (U.  S.) 
407,  16  L.  Ed.  696;  Butler  v.  Hildreth,  5  Mete.  (Mass.)  49;  Dellone 
v.  Hull,  47  Md.  112;  StOAvart  v.  Emerson,  52  N.  H.  301,  310;  Bulk- 
ley  V.  Morgan,  46  Conn.  393;  Kellogg  v.  Turpie,  93  111.  265,  34  Am. 
Rep.  1G3;  Stoutenboiu-gh  v.  Konkle,  15  N.  J.  Eq.  33;  Weed  v.  Page, 
7  Wis.  503.  Otherwise  in  New  York,  where  it  is  held  that  the  sell- 
er may  rescind  as  to  the  credit  and  sue  at  once  for  the  price. 
Wigand  v.  Sichel,  *42  N.  Y.  120;  Roth  v.  Palmer,  27  Barb.  (N.  Y.) 
Go2;  Heilbronn  v.  Herzog,  33  App.  Div.  311,  53  N.  Y.  Supp.  S41, 
843;  Jaffrey  v.  Wolf,  4  Okl.  303.  47  Pac.  496  (New  York  contract). 
See,  also,  Dietz  v.  Sutcliffe,  80  Ky.  650. 

67  Clough  V.  Railway  Co.,  L.  R.  7  Exch.  26,  34;    Moller  v.  Tuska, 


§§  56-57)  REMEDIES   OF    DEFRAUDED    PARTY.  ISO 

sole  remedy  of  the  defrauded  party  for  the  fraud  is  by  way 
of  damages,  which  he  may  recover  in  an  action  of  deceit;  or, 
if  he  be  the  buyer,  he  may  set  up  the  fraud  by  way  of  recoup- 
ment in  an  action  by  the  seller  for  the  price.®'  It  is  not  nec- 
essary that  the  affirmance  should  be  express.  Any  acts  which 
unequivocally  treat  the  contract  as  subsisting,  such  as  dealing 
with  the  goods  as  his  own  on  the  part  of  the  buyer  or  taking 
security  for  the  price  on  the  part  of  the  seller,  wall  have  the 
same  effect.*'^  Bringing  suit  on  the  contract  is  a  conclusive 
affirmance.'^''  Bringing  an  action  for  deceit,  if  the  buyer  re- 
tains the  goods,  and  asks  damages  for  the  difference  between 
the  goods  as  represented  and  as  they  actually  were,  is  an  af- 
firmance.'^^    Where  the  election  to  affirm  has  once  been  ex- 


87  N.  Y.  166;  Pence  v.  Langdon.  99  U.  S.  578,  582,  25  L.  Ed.  420; 
First  Nat.  Bank  v.  Tootle,  59  Neb.  44,  SO  N.  W.  264. 

68  Harrington  v.  Stratton,  22  Pick.  (Mass.)  510;  Perley  v.  Balch, 
23  Pick.  (Mass.)  283,  34  Am.  Dec.  56;  Foulk  v.  Eckert,  61  111.  318; 
lAikens  V.  Aiken,  174  Pa.  152,  34  Atl.  575. 

A  vendee  who  Jias  been  induced  by  the  fraud  of  bis  vendor  to 
make  a  contract  of  purchase,  which  contains  warranties  made  by 
the  vendor,  has  a  choice  of  remedies.  He  may  rescind  the  con- 
tract, restore  what  he  has  received,  and  recover  back  what  he  has 
paid,  or  he  may  affirm  the  contract,  recover  the  damages  he  has  sus- 
tained for  the  fraud,  and  also  those  resulting  from  a  breach  of  the 
warranties  of  the  vendor;  but  he  cannot  do  both.  Wilson  v.  Cattle 
Kanch  Co.,  73  Fed.  994,  20  C.  C.  A.  241. 

60  Clough  V.  Railway  Co.,  L.  R.  7  Kxch.  26,  34;  Grymes  v. 
Sanders,  93  U.  S.  55,  62,  23  L.  Ed.  798;  Joslin  v.  Cowee,  52  N.  Y. 
90;  Seavy  v.  Potter,  121  Mass.  297;  Cross  v.  Hayes,  45  N.  J.  Law, 
565;  Davis  v.  Betz,  66  /Via.  20(5;  Evans  v.  Montgomery,  50  Iowa, 
325,  337;  Bridgeford  v.  Adams,  45  Ark.  136;  Droege  v.  Manufactur- 
ing Co.,  163  N.  Y.  466,  57  N.  E.  ^747;  Samples  v.  Guyer,  120  Ala., 
611,  24  South.  942.  Acquiescence  is  evidence  of  election.  Fleming 
v.  Hanley,  21  R.  I.  141,  42  Atl.  520.  A  mere  effort  to  obtain  security 
is  not  an  election.  Cortland  Mfg.  Co.  v.  Piatt,  83  Mich.  419,  47  N. 
W.  330. 

70  Cases  cited  in  note  66,  supra ;  First  Nat.  Bank  v.  Tootle,  59 
Neb.  44,  80  N.  W.  264.  But  obtaining  judgment  in  ignorance  of 
the  fraud  does  not  amount  to  an  affirmance.  Clough  v.  London  & 
N.  W.  Ry.  Co..  L.  R.  7  Exch.  26,  35;  Kraus  v.  Thompson,  30  Minn. 
64,  14  N.  W.  266,  44  Am.  Rep.  182, 

Ti  Emma  Silver  Min.  Co.  v.  Mining  Co.  (C.  C.)  7  Fed.  401,  402. 
It  has  indeed  been  laid  down  broadly  that  bringing  action  for 
deceit  aflirms  the  sale.    Kimball  v.  Cunningham,  4  Mass.  505,  3  Am. 


190  FRAUD   AND    RETENTION    OF   POSSESSION.  (Ch.  5 

ercised,  the  subsequent  discovery  of  a  new  incident  in  the  fraud 
will  not  revive  the  right  to  rescind.''^ 

If,  on  the  other  hand,  the  defrauded  party  elects  to  rescind, 
he  must  manifest  his  election  by  distinctly  communicating  to 
the  other  party  his  intention  to  repudiate  the  contract.'^  ^  It  is 
not  necessary  to  a  rescission  that  the  contract  should  be  judicial- 
ly set  aside.'^*  Thus,  if  the  defrauded  party  be  the  buyer,  he 
may  refuse  to  accept  the  goods  if  he  discover  the  fraud  before 
delivery,  or  may  return  them  if  the  discovery  be  not  made  till 
after  delivery;  and,  if  he  has  paid  the  price,  he  may  recover 
it  back  on  offering  to  return  the  goods.'' ^  On  the  other  hand, 
the  defrauded  party  may  set  up  the  rescission  as  a  defense  in  an 
action  by  the  other  on  the  contract;  ''^  or  he  may,  if  the  remedy 
at  law  is  inadequate,  institute  proceedings  in  equity  to  have 
the  contract  set  aside.^^  Election  to  rescind  waives  the  right 
to  sue  on  the  contract.''* 


Dee.  230.  Cf.  Whiteside  t.  Brawley,  152  Mass.  133,  134,  24  N.  E. 
1088.  But  the  action  for  deceit  does  not  necessarily  imply  an  af- 
firmance, as  where  the  seller  reclaims  such  goods  as  he  can  reach, 
and  as  to  the  remainder  sues  the  buyer  to  recover  damages  for  the 
fraud.  Hersey  v.  Benedict,  15  Hun  (N.  Y.)  282.  See,  also,  Hub- 
bell  V.  Meigs,  50  N.  Y.  480.  487:  Miller  v.  Barber,  66  N.  Y.  558. 
564 ;  Lenox  v.  Fuller,  39  Mich.  268 ;  Clark,  Cont.  (2d  Ed.)  235 ;  9  Cyc. 
433. 

72  Campbell  v.  Fleming,  1  Adol.  &  E.  40;  Pratt  v.  Philbrook,  41 
Me.  132.     But  see  Pierce  v.  Wilson,  34  Ala.  .596. 

73  Ashley's  Case,  L.  R.  9  Eq.  263;  Hammond  v.  Pennock,  61  N. 
Y.  145,  155;  Potter  v.  Taggart,  54  Wis.  395,  400,  11  N.  W.  678; 
Gates  v.  Bliss,  43  Vt.  299. 

7  4  Reese  River  Silver  Min.  Co.  v.  Smith,  L.  R.  4  H.  L.  64,  73. 

7  5  Clarke  v.  Dickson,  El.  Bl.  &  El.  148;  Coolldge  v.  Brigham,  1 
Mete.  (Mass.)  547. 

7  6  Clough  V.  Railway  Co.,  L.  R.  7  Exch.  26.  36. 

7  7  Anson,  Cont.  154;   Clark,  Cont.  (2d  Ed.)  235. 

7  8  Farwell  v.  Myers,  59  Mich.  179,  26  N.  W.  328;  Wright  v.  Zeig- 
ler,  70  Ga.  501.  Cf.  Powers  v.  Benedict,  88  N.  Y.  005.  The  seller 
wjio  has  rescinded,  but  has  not  recovered  all  the  goods,  may  sue 
for  the  conversion  of  the  remainder,  or,  if  they  have  been  converted 
into  money,  may  waive  the  tort  and  sue  in  assumpsit.  Farwell 
v.  Myers,  64  Mich.  234,  31  N.  W.  128;  Powers  v.  Benedict  88  N. 
Y.  605;  Sleeper  v.  Davis,  64  N.  H.  59,  6  Atl.  201,  10  Am.  St.  Rep. 
377. 


g§  50-57)  REMEDIES    or    DEKKAUDEU    rAIlTY.  101 

Restitutio  in  Integrum. 

The  right  of  a  party  to  rescind  for  fraud,  as  for  other  causes, 
is  conditional  upon  his  restoring  the  otlier  party  to  the  position 
in  which  he  was  before  the  contract.  Thus  the  seller  must  re- 
turn or  offer  to  return  the  price,  and  the  buyer  must  return 
or  offer  to  return  the  goods,^°  though  he  need  not  do  so  if  they 
are  absolutely  worthless.""  Accordingly,  if  the  buyer  has  con- 
sumed or  sold  any  part  of  the  goods,  he  cannot  rescind ; 
though,  if  he  is  the  guilty  party,  he  cannot  prevent  a  rescission 
if  the  seller  elects  to  take  a  partial  restoration.^^     But  the  fact 


»»  Clarke  v.  Dickson.  El.  Bl.  &  El.  148;  Grymes  v.  Sanders,  93  U. 
S.  5o,  23  L.  Ed.  TOS;  Kimball  v.  Cunningliam.  4  Mass.  5C2,  3  Am. 
Dec.  230;  Thayer  v.  Turner,  8  Mete.  (Mass.)  550;  Cook  v.  Oilman, 
34  N.  H.  5^10;  Hammond  v.  Buckmaster,  22  Vt.  375;  Tlsdale  v. 
Buckmore,  33  Me.  4G1;  Burton  v.  Stewart,  3  Wend.  CN.  Y.)  23G,  20 
Am.  Dec.  tiO'J;  Masson  v.  Bovet,  1  Denlo  (N.  Y.)  GO,  43  Am.  Dee. 
G51;  Babcock  v.  Case.  61  Pa.  427,  100  Am.  Deo.  G54;  Haase  v.  Mit- 
chell, 58  Ind.  213;  Herman  v.  Hafifenepger,  54  Cal.  IGl;  Friend  Bros. 
Clothing:  Co.  v.  Hurlburt,  98  Wis.  183,  73  N.  W.  784;  Samples  v. 
Guyer,  120  Ala.  Gil,  24  South.  942. 

Where  the  buyer's  note  has  been  received  in  payment,  it  Is  suffi- 
cient if  he  surrender  it  at  the  trial.  Thurston  v.  Blanchard,  22 
Pick.  (Mass.)  18,  33  Am.  Dec.  700.  See,  also,  NMcliols  v.  Michael. 
23  N.  Y.  264.  80  Am.  Dec.  259;  Skinner  v.  Hoop  Co..  119  Mich.  467, 
78  N.  W.  547.  Cf.  Farwell  v.  Hanchett,  120  111.  573,  11  N.  E.  875. 
Contra:    Thompson  v.  Peck,  115  Ind.  512,  18  N.  E.  16,  1  L.  R.  A.  201. 

The  seller  cannot  excuse  failure  to  return  the  note  of  a  third 
person  given  for  the  price  by  showing  that  it  was  worthless  by 
reason  of  the  maker's  insolvency.  Crossen  v.  Murphy,  31  Or.  114. 
49  Pac.  858.     Clark.  Cont.  (2d  Ed.)  237. 

80  Kent  V.  Bornstoin.  12  Allen  (Mass.)  342;  Brewster  v,  Burnett, 
125  Mass.  68,  28  Am.  Rep.  203;  Smith's  Adm'r  v.  Smith,  30  Vt  139; 
Dill  V.  O'Ferrall,  45  Ind.  268. 

If  the  things  received  are  capable  of  serving  any  purpose  of  ad- 
vantage by  their  possession  or  control,  or  If  their  loss  would  be  a 
disadvantage  in  any  way,  they  must  be  returned.  "This  rule  is  held 
with  great  strictness  In  actions  at  law,  as  in  the  case  of  the  casks 
that  contained  worthless  lime  (Connor  v.  Henderson,  15  Mass.  319. 
8  Am.  Dec.  103),  and  the  sack  that  covered  the  rejected  bale  of 
cotton.  Morse  v.  Brackett.  98  Mass.  205;  Id.,  104  Mass.  494."  Bas- 
sett  V.  Brown,  105  Mass.  55S. 

f^i  Hammond  v.  Pennock,  01  N.  Y.  145;  Harper  v.  Terry,  70  Ind. 
204. 


192  FRAUD   AND   RETENTION   OF  POSSESSION.  (Ch.  5 

that  the  thing  has  depreciated  in  value  by  natural  causes  or 
reasonable  use,  or  that  it  has  been  necessarily  destroyed  in  dis- 
covering the  fraud,  will  not  defeat  rescission  on  his  part.^- 
And  if  in  the  meantime  he  has  incurred  expenses  for  repairs  he 
may  on  rescission  and  return  recover  the  cost,^^  but  if  he  is 
the  guilty  party  he  cannot  exact  a  payment  of  such  cost  as  a 
condition  of  rescission.^*  And  if  the  defrauded  party,  by  rea- 
son of  the  wrongful  conduct  of  the  wrongdoer,  is  rendered  in- 
capable of  restoring  the  latter  to  his  former  position,  to  that 
extent  such  restoration  is  unnecessary  to  a  rescission.*^  In- 
deed, the  rule  requiring  the  return  of  what  has  been  received 
is  frequently  relaxed  where  its  enforcement  would  not  tend  to 
accomplish  a  just  result.  "This  rule,"  it  has  been  said,  "is 
wholly  an  equitable  one.  Impossible  or  unreasonable  things, 
which  do  not  tend  to  accomplish  equity  in  the  particular  trans- 
action, are  not  required."  *^  Thus  it  has  been  held  that  the 
seller  may  rescind  without  returning  payments  on  account  of 
the  price,  where  it  appears  that  the  value  of  the  goods  claimed 
does  not  exceed  the  balance  unpaid,*'^  or  where  the  fraudulent 
buyer  has  disposed  of  more  than  enough  of  the  goods  to  cover 


82  Veazie  v.  Williams,  8  How.  (U.  S.)  134,  15S,  12  L.  Ed.  1018; 
Neblett  v.  Macfarland,  92  U.  S.  101,  104,  23  L.  Ed.  471;  Gatling  v. 
Newell.  9  Ind.  572;  Faulkner  v.  Klamp,  16  Neb.  174,  20  N.  W.  220; 
Campbell  Printing  Press  &  Mfg.  Co.  v.  Marsh,  20  Colo.  22,  36  Pac. 
799. 

S3  Canada  v.  Canada,  6  Cush.  (Mass.)  15;  Farris  v.  Ware,  60  Me. 
482. 

«*  Guckenheimer  v.  Angevine,  81  N.  Y.  394;  Cbamberlin  v.  Ful- 
ler, 59  Vt.  247,  9  Atl.  832. 

ssMasson  v.  Bovet,  1  Denio  (N.  Y.)  69,  43  Am.  Dec.  651;  Ham- 
mond V.  Pennook,  61  N.  Y.  145;  Phonix-  Iron  Works  Co.  v.  McEvony. 
47  Neb.  228,  66  N.  W.  200.  .53  Am.  St.  Rep.  527:  Gates  v.  Raymond, 
106  Wis.  657,  82  N.  W.  530. 

8  6  sioane  v.  Sbiffer,  156  Pa.  59,  27  Atl.  67,  per  Dean,  J.  See  9 
Cyc.  441. 

87  Schofield  V.  Sbiffer,  156  Pa.  65,  27  Atl.  69.  See,  also.  Tootle  v. 
Bank,  34  Neb.  SC3,  52  N.  W.  306;  Sisson  v.  Hill,  18  R.  I.  212,  26  Atl. 
196,  21  L.  R.  A.  206;  Gay  v.  D.  M.  Osborne  &  Co.,  102  Wis.  (Ml,  781 
N.  W.  1079;  John  V.  Farwell  Co.  v.  Hilton,  84  Fed.  293,  39  D.  R. 
A.  579. 


§§  56-57)  REMEDIES   OF    DEKHAUDED   PARTY.  103 

the  amount  paid,*^  or  where  the  goods  have  been  damaged 
by  the  buyer  to  the  amount  of  the  payment  received.*" 

Bona  Fide  Purchasers  from  Fraudulent  Buyer. 

It  follows  from  the  principle  that  the  contract  is  voidable, 
and  not  void,  that,  when  innocent  third  persons  have  for  value 
acquired  rights  under  the  sale,  their  rights  are  indefeasible. 
The  rule  is  also  stated  to  be  an  application  of  the  principle  of 
convenience  that,  when  one  of  two  innocent  parties  must  suf- 
fer from  the  fraud  of  a  third,  the  loss  should  fall  on  the  one 
who  enabled  the  third  party  to  commit  the  fraud.***  Thus, 
when  a  sale  is  procured  by  fraud,  the  property  in  the  goods  is 
transferred  by  the  contract, °^  subject  to  the  seller's  right  of 
rescission,  and  a  purchaser  in  good  faith  from  the  fraudulent 

88  Sloane   v.    Shiffer,    supra. 

Where  the  sale  sought  to  be  rescinded  consists  of  several  pur- 
chases, plaintiff  Is  entitled  to  treat  them  as  independent  sales;  and 
all  payments  made  by  defendants  on  account  may  be  applied  to  the 
first  purchase,  unless  otherwise  designated  by  defendants;  and  plain- 
tiff would  be  entitled  to  rescind  the  other  sales,  Avithout  returning  or 
offering  to  return  the  payments  received  on  the  first.  Friend  Bros. 
Clothing  Co.  v.   Ilulhert,   08  Wis.   18.3.  73  N.   W.   784. 

"o  Phenix  Iron  Works  Co,  v.  McEvony,  47  Neb.  228.  C^ry  N.  W.  200, 
ra  Am.  St.  Rep.  527. 

9"  Tol.  Cont.  (3d  Ed.)  556;  Rabcock  v.  Lawson,  4  Q.  B.  Div.  304. 

Where  J.  on  August  21st  had  contracted  to  sell  to  defendants  a 
qu.antity  of  linseed,  and  they  gave  their  notes,  which  he  pledged, 
as  collateral  for  a  loan,  and  J.,  who  had  been  negotiating  with 
plaintiffs  for  the  linseed,  on  August  21st  contracted  for  it,  and  on 
.\ugust  24th,  induced  by  his  fraudulent  representations,  plaintiffs 
deliveretl  it  to  him,  and  he  delivered  it  to  defendants,  plaintiffs 
were  entitled  to  recover  it;  defendants  not  having  parted  with  value 
upon  the  assertion  of  a  right  by  J.  for  which  plaintiffs  were  in  any 
way  responsible.  Barnard  v.  Campbell,  .55  N.  Y.  45G,  14  Am.  Rep. 
280;    Id.,  f)8  N.  Y.  73,  17  Am.  Rep.  208. 

But  where  the  buyer  by  fraud  obtained  delivery  of  corn  from  the 
seller,  and  defendants  purchased  a  bill  of  exchange  drawn  by  the 
buyer,  relying  on  his  representations  that  it  was  drawn  on  a  ship- 
ment of  grain,  it  could  not  be  said  that  defendants  "trusted  to  an 
assertion  of  title  for  which  the  plaintiffs  were  in  no  way  responsi- 
ble."    Parker  v.  Baxter.  80  N.  Y.  580. 

»i  In  some  of  the  early  cases  it  was  held  that  the  property  did 
not  pass.  See  Earl  of  Bristol  v.  Wilsmore,  1  Barn.  &  C.  514;  Benj, 
Sales,  §  434. 

Tiff.Sales(2d  Ed.)— 13 


194  FRAUD  AND   RETENTION   OF  POSSESSION.  (Ch.  5 

buyer  before  the  sale  is  rescinded  acquires  a  good  title.'*  The 
purchase  must  be  in  good  faith;  that  is,  the  purchaser  must 
acquire  title  from  the  fraudulent  buyer  without  notice  of  the 
defects  in  his  title,  or  knowledge  of  circumstances  to  put  him 
upon  inquiry  as  to  the  source  of  the  wrongdoer's  title.^^  The 
purchase  must  be  for  value,  and  hence  the  protection  does  not 
extend  to  attaching  creditors  ®*  or  to  an  assignee  in  bankrupt- 
cy.®^ By  the  great  preponderance  of  authority  in  this  country 
a  person  is  not  held  to  be  a  purchaser  for  value  if  he  takes  the 
goods  in  payment  of  a  pre-existing  debt,^®  or  by  way  of  pledge 

92  White  V.  Garden,  10  C.  B.  919,  20  Law  J.  C.  P.  167;  Stevenson 
V.  Newnham,  13  C.  B.  285,  22  Law  J.  C.  P.  110;  Pease  v.  Gloahec, 
L.  R.  1  P.  0.  220,  3  3kIoore,  P.  C.  (N.  S.)  556;  Rowley  v.  Bigelow, 
12  Pick.  (Mass.)  307,  23  Am.  Dec.  607;  Hofeman  v.  Noble,  6  Mete. 
(Mass.)  68,  39  Am.  Dec.  711;  Easter  v.  Allen,  8  Allen  (Mass.)  7; 
Kingsbm-y  v.  Smith,  13  N.  H.  109;  Titcomb  v.  Wood,  38  Me.  561; 
Williamson  v.  Russell,  39  Ck)nn.  406;  Paddon  v.  Taylor,  44  N.  Y. 
371;  Stevens  v.  Brennan,  79  N.  Y.  254;  Sinclair  v.  Healy,  40'  Pa. 
417,  80  Am.  Dec.  589;  Hall  v.  Hinks,  21  Md.  406;  Williams  v.  Given, 
6  Grat.  (Va.)  268;  Kern  v.  Tlmrber,  57  Ga.  172;  Wood  v.  Yeatman, 
15  B.  Mon.  (Ky.)  270;  Hawkins  v.  iDavis.  8  Baxt.  (Tenn.)  506; 
Chicago  Dock  Co,  v.  Foster,  48  111.  507;  Holland  v.  Swain,  94  111. 
154;  Bell  v.  CafEerty,  21  Ind.  411;  Singer  Mfg.  Co.  v.  Sammons,  49 
Wis.  316,  5  N.  W.  788;  Wineland  v.  Coonce,  5  Mo.  296,  32  Am.  Dec. 
320;  Cochran  v.  Stewart,  21  Minn.  435;  Sargent  v.  Sturm,  23  Cal. 
359;  83  Am.  Dec.  118;  Lightman  v.  Boyd,  132  Ala.  618,  32  South. 
714;   Sales  Act,  §  24;   ante,  p.  48. 

93  Barnard  v.  Campbell,  58  N.  Y.  73,  17  Am.  Rep.  208;  Scheuer  v. 
Goetter,  102  Ala.  313,  14  South.  774;  Starr  v.  Stevenson,  91  Iowa, 
684,  60  N.  W.  217. 

9-1  Bufiington  v.  Gerrish,  15  Mass.  158,  8  Am.  Dec.  97;  Devoe  v. 
Brandt.  53  N.  Y.  462;  Thaster  v.  Foster,  153  Mass.  151,  26  N.  B. 
434;  (Thompson  v.  Rose,  16  Conn.  71,  41  Am.  Dec.  121;  Jordan  v. 
P-orker.,  56  Me.  557;  Oswego  Starch  Fact.  v.  Lendrum,  57  Iowa, 
573,  10  N.  W.  900,  42  Am.  Rep.  58. 

95  Donaldson  v.  Farwell,  93  U.  S.  631,  23  L.  Ed.  993;  Bussing  v. 
Rice,  2  Cush.  (Mass.)  48;  Singer  v.  Schilling,  74  Wis.  369,  43  X.  W- 
101;  Benesch  v.  Weil,  09  Md.  276,  14  Atl.  666;  Wallace  v.  Cohen, 
111  N.  C.  103,  15  S.  E.  892.  Contra:  Wickham  v.  Martin,  13  Grat. 
(Va.)  427;    Oberdorfer  v.  Meyer,  88  Va.  384,  13  S.  E.  756. 

9  0  Stevens  v.  Brennan,  79  N.  Y.  258;  Sleeper  v.  Davis,  64  N.  H. 
59,  6  Atl.  201,  10  Am.  St.  Rep.  377;  Poor  v.  Woodburn,  25  Vt.  235; 
McGraw  v.  Solomon,  83  Mich.  442,  47  N.  W.  345;  Henderson  v. 
Gibbs,  30  Kan.  079,  18  Pac.  926;  Eaton  v.  Davidson,  46  Ohio  St 
355,  21  N.  E.  442;    Hurd  v.  Bickford,  85  Me.  217,  27  Atl.  107,  35  Am. 


§§  56-57)  REMEDIES   OF    DEFRAUDED   PARTT.  195 

or  mortgage  as  security  for  a  pre-existing  dcbt.°^  In  this  re- 
spect the  rule  is  different  from  that  applicable  to  negotiable  in- 
struments, as  to  which  an  antecedent  debt  constitutes  value 
where  an  instrument  is  taken  in  satisfaction  or  as  security  there- 
for.**^ For  the  sake  of  having  a  single  rule  for  what  constitutes 
a  valuable  consideration,  and  in  view  of  mercantile  convenience, 
the  proposed  Sales  Act  has  adopted  the  rule  that  "an  antecedent 
debt  or  pre-existing  claim,  whether  for  money  or  not,  con- 
stitutes value  where  goods  or  documents  of  title  arc  taken  in 
satisfaction  thereof  or  as  security  therefor."  °®  If  the  fraudu- 
lent buyer  has  sold  the  goods  to  a  bona  fide  purchaser,  the 
seller  may  in  equity  follow  the  proceeds  of  the  resale  so  long 
as  they  in  turn  have  not  come  into  the  hands  of  a  bona  fide  pur- 
chaser,^°°  provided  they  can  be  traced  and  identified/"^ 

St.  Rep.  353;  Starr  v.  Stevenson,  91  Iowa,  084,  60  N.  W.  217; 
Schloss  V.  Feltus,  103  Mich.  525,  61  N.  W.  707,  36  L.  R.  A.  161; 
Woousocket  Rubber  Co.  v.  Loewenberg,  17  Wash.  29,  48  Pac.  785, 
01  Am.  St.  Rep.  902;  Belleville  Pump  &  Skein  Works  v.  Samuelson, 
16  Utah,  234,  52  Pac.  282.  Contra:  Shufeklt  v.  Pease,  16  Wis. 
059;   Butters  v.  Haughwout,  42  111.  18,  89  Am.  Dec.  401. 

07  Goodwin  v.  Loan  &  Trust  Co.,  152  Mass.  189,  199.  25  N.  E. 
100;  Edson  v.  Hudson,  83  Mich.  450,  47  N.  W.  347;  Phenix  Iron 
Works  Co.  V.  McEvony,  47  Neb.  228,  66  N.  W.  290,  53  Am.  St.  Rep. 
527;  Reid.  Murdoch  &  Co.  v.  Bird,  15  Colo.  App.  116,  61  Pac.  353; 
Adam,  Meldrum  \Sc  Anderson  Co.  v.  Stewart,  157  Ind.  678,  61  N. 
E.  1002,  87  Am.  St.  Rep.  240;  Phelps,  Dodge  &  Palmer  Co.  v. 
Samson,  113  Iowa,  145,  84  N.  W.  1051. 

To  vest  a  mortgagee  with  the  rights  of  an  innocent  purchaser, 
a  pre-existing  debt  is  not  sufficient;  but,  if  any  sum  is  paid  at  the 
time  of  the  execution  of  the  mortgage,  the  mortgagee  may  be 
protected  to  that  extent.  Commercial  Nat.  Bank  v.  Pirie,  82  Fed. 
799.   27   0.   C.    A.    171. 

98  Norton,  Bills  &  Notes  (3d  Ed.)  310. 

»»  Sales  Act,  §  70  (1). 

100  American  Sugar  Refining  Co.  v.  Fancher,  145  N.  Y.  552.  'i^ 
N.  E.  2O0,  27  Lr.  R.  A.  757;  SheflBeld  v.  Mitchell,  31  App.  Div.  200, 
52  N.  Y.  Supp.  925. 

In  American  Sugar  Refining  Co.  v.  Fancher,  supra,  where  the 
goods  were  resold  and  the  original  seller  rescinded,  it  was  held  that 
equity  had  jurisdiction  to  follow  the  proceeds  into  the  hands  of  the 
fraudulent  buyer's  assignee  for  the  benefit  of  creditors  and  subject 
them  to  a  lien  In  favor  of  the  defrauded  seller. 

101  Farwell  v.  Kloman,  45  Neb.  424,  63  N.  W.  798. 


196  FEAUD  AND  RETENTION   OF  POSSESSION.  (Ch.  5 

Same — Fraudulent  Impersonation. 

A  sale,  however,  is  to  be  distinguished  from  a  mere  delivery 
of  possession  induced  by  fraud ;  for  in  the  latter  case  the  per- 
son obtaining  possession  acquires  no  property  in  the  goods,  and 
can  pass  none  to  a  third  person,  however  innocent.^**^  Thus 
where  a  person  obtains  goods  by  fraudulently  impersonating  a 
third  person,^"'  or  by  pretending  to  be  the  agent  of  a  third  per- 
son,^"* to  whom  the  owner  supposes  he  is  selling  the  goods,  the 
person  thus  obtaining  the  goods  acquires  no  title,  and  a  bona 
fide  purchaser  from  him  stands  in  no  better  position.  In  such 
a  case  there  is  no  contract  at  all,  as  the  seller  never  consented 
to  sell  to  the  person  to  whom  he  delivered  the  goods. 

102  Baehr  v.  Clark,  83  Iowa,  313,  49  N.  W.  840,  13  L.  R.  A.  717. 

103  Cundy  v.  Lindsay,  3  App.  Cas.  459;  Loeffel  v.  Poblman,  47 
Mo.  App.  574. 

In  Cundy  v.  Lindsay,  supra,  one  A.  Blenkarn  wrote  to  plaintiffs, 
proposing  to  buy  goods  of  them.  The  letters  were  headed  "37  Wood 
Street,"  and  the  signature,  "Blenkarn  &  Co.,"  was  written  to  re- 
semble "Blenkiron  &■  Co." ;  there  being  a  reputable  firfli  of  "W.  Blen- 
kiron  «&  Son"  at  123  Wood  street.  Plaintiffs,  who  knew  the  reputa- 
tion of  W.  Blenkiron  &  Son,  but  not  their  street  number,  sent  the 
goods  to  "Blenkiron  &  Co.,"  37  Wood  Street,  and  Blenkarn  sold  the 
goods  to  defendants,  who  were  bona  fide  purchasers.  In  the  action 
for  conversion,  it  was  held  that  plaintiffs  could  recover;  tliey  having 
no  knowledge  of  and  not  intending  to  deal  with  Blenkarn,  but  with 
Blenkiron  &  Co.,  and  no  contract  of  sale  having  existed  with  Blen- 
karn. 

Compare  Edmunds  v.  Transportation  Co.,  135  Mass.  283,  where  A. 
in  person  represented  to  the  seller  that  he  was  B.,  a  man  of  credit, 
and  the  seller,  relying  on  the  representation,  sold  goods  to  him, 
and  it  was  held  that  the  property  passed;  there  being  a  contract, 
though  voidable  between  the  parties,  and  the  seller  intending  to  con- 
tract with  the  person  identified  by  sight  and  hearing. 

loiHiggons  V.  Burton,  26  Law  J.  Kxch.  342;  Hardman  v.  Booth, 
1  Hurl.  &  C.  803,  32  Law  J.  Exch.  105;  Moody  v.  Blake,  117  "Mass. 
23,  19  Am.  Bep.  .394;  Rodliff  v.  Dallinger,  141  Mass.  1,  4  N.  E.  805, 
55  Am.  Kep.  439;  Barker  v,  Dinsmore,  72  Pa.  427,  13  Am.  Rep.  697; 
Hamet  v.  Letcher,  37  Ohio  St.  356,  41  Am.  Rep.  519;  McCrillis  v. 
Allen,  57  Vt.  505;  Peters  Box  &  Lumber  Co.  v.  Lesh,  119  Ind.  98, 
20  N.  E.  291,  12  Am.  St.  Rep.  367.  See,  also,  Kinsey  v.  Leggett,  71 
X.  Y.  387;  Rogers  v.  Button,  182  Mass.  187,  65  X.  E.  56;  Smith 
Premier  Typewriter  Co.  v.  Stidger,  18  Colo.  App.  261,  71  Pac.  400. 

If  the  buyer  makes  no  false  representation,  he  can  give  good  title, 
although  the  seller  supposed  he  was  buying  as  agent  for  another. 
Stoddard  v.  Ham,  129  Mass.  383,  37  Am.  Rep.  369;    ante,  p.  52. 


§§  58-59)  FRAUD   ON    CKEDITORS.  197 

Rescission  must  be  JViihiii  a  Reasonable  Time. 

What  is  a  reasonable  time  after  the  discovery  of  the  fraud 
depends  on  the  circumstances  of  the  case.^""  Mere  lapse  of 
time  will  furnish  evidence,  and,  when  the  lapse  of  time  is 
great,  probably  conclusive  evidence,  of  affirmance.^""  If  in 
the  meantime  the  superior  rights  of  third  persons  have  inter- 
vened, or  the  position  of  the  other  party  has  altered  to  his  dis- 
advantage, the  defrauded  party  would  be  deprived  of  his  right 
to  rescind. ^°^ 


FRAUD     ON    CREDITORS— RETENTION     OF    POSSESSION. 

58.  IN  GENERAL.     A  sale  made  vrith  the  intent  on  the  part 

of  tlie  seller  and  the  buyer  to  delay,  hinder,  or  de- 
fraud the  creditors  of  the  seller  is  deemed  fraudulent, 
and  may  be  avoided  by  such  creditors,  unless  a  third 
person  has  in  good  faith  and  for  value  acquired  an  in- 
terest in  the  goods  sold.  A  sale  fraudulent  as  to  cred- 
4»r>-^^|.  valid  as  bet-wcen  the  parties,  and  a  bona  fide 
purchaser  for  value  from  the  fraudulent  buyer  before 
avoidance   acquires   an   indefeasible    title. 

59.  RETENTION    OF    POSSESSION.      Where   a   person,    hav- 

ing sold  goods,  continues  in  the  possession  of  them, 
in  some  jurisdictions  it  is  held  by  the  courts  or  is 
enacted  that  such  retention  of  possession  is  conclu- 
sive evidence  of  fraud;  tirhile  in  other  jurisdictions  it 
is  held  or  enacted  that  such  retention  of  possession 
is  prima  facie  evidence  of  fraud,  but  that  the  good 
faith  of  the  transaction  may  be  shown. 

106  Smith  V.  Bank.  45  Neb.  344.  63  N.  W.  796;  Boles  v.  Merrill.  173 
Mass.  491,  53  N.  E.  894,  73  Am.  St.  Rep.  308. 

lofi  Clough  V.  Railway  Co.,  7  Exch.  26;  Byrd  v.  Kautman,  85  Md. 
414,  30  Atl.  1099. 

lOT  Clough  V.  Railway  Co.,  L.  R.  7  jExch.  26,  35;  Pence  v.  Lang- 
don.  99  T:.  S.  578,  25  L.  Ed.  420;  Grymes  v.  Sanders,  93  U.  S.  55, 
62.  23  L.  Ed.  798;  Williamson  v.  Railroad  Co.,  28  N.  J.  Eq.  277,  293; 
Id..  29  N.  J.  Eq.  311,  319;  Willougliby  v.  Monlton,  47  N.  H.  205; 
Burton  v,  Stewart,  3  Wend.  (N.  Y.)  239,  20  Am.  Dec.  (;92;  Herrln 
V.  Libbey,  36  Me.  357;  Chamberlin  v.  Fuller,  59  Vt.  247,  9  Atl.  832; 
Wilson  V.  Fisher,  5  Houst.  (Del.)  395;  Bassett  v.  Brown,  105  Mass. 
551,  557;  Evans  v.  Montgomery,  50  Iowa,  325;  Ilall  v,  Fullerton, 
69  111.  448;  Parmlee  v.  Adolph,  28  Ohio  St  10;  Collins  v.  Townsend, 
58  Cal.  608;   Terry  v.  Pearson,  135  111.  218,  25  N.  E.  636;   Snyder  v. 


198  FRAUD   AND    RETENTION    OF   POSSESSION.  (Oh.  5 

The  foundation  of  the  law  on  this  subject  is  usually  consid- 
ered to  be  the  statute  of  13  Eliz.  c.  5,^"^  made  perpetual  by  the 
statute  of  29  Eliz.  c,  5,  although  earlier  statutes  had  been 
previously  passed,  and  it  has  been  said  upon  high  authority 
that  the  principles  of  the  common  law  are  so  strong  against 
fraud  that  without  these  statutes  every  end  proposed  by  them 
would  have  been  obtained.^^^  The  statute  of  13  Eliz.  c.  5,  pro- 
vides in  substance  that  all  conveyances  and  sales  of  land  or 
chattels  made  with  intent  to  delay,  hinder,  or  defraud  creditors 
shall  be  utterly  void  and  of  no  effect  against  them,  with  a  pro- 
viso that  the  act  shall  not  extend  to  defeat  any  estate  or  in- 
terest conveyed  upon  good  consideration  and  bona  fide  to  any 
person  not  having  at  the  time  of  such  conveyance  notice  of 
the  fraud.  The  statute  has  been  substantially  re-enacted  in 
many  of  the  states  of  the  Union,  but  its  principles  have  been 
adopted  even  in  states  where  no  such  statute  has  been  passed. ^^° 

Hegan,  40  S.  W.  G93,  19  Ky.  Law  Rep.  517;  Clark,  Cont.  (2d  Ed.) 
236.  , 

108  "For  the  avoiding  and  abolishing  of  feigned,  covinous,  and 
fraudulent  feoffments,  gifts,  grants,  alienations,  conveyances,  bonds, 
suits,  judgments,  and  executions,  as  well  of  lauds  and  tenements  as 
of  goods  and  chattels,  *  *  *  devised  and  contrived  of  malice, 
fraud,  covin,  collusion,  or  guile,  to  the  end,  purpose,  and  intent  to  delay, 
hinder,  or  defraud  creditors  and  others  of  their  just  and  la'n^ul  ac- 
tions, suits,  debts:  *  *  *  be  it  therefore  declared,  ordained  and 
enacted  that  all  and  every  feoffment,  gift,  grant,  alienation,  bargain, 
and  conveyance  of  land,  tenements,  hereditaments,  goods,  and  chat- 
tels,    *     *     *     and  also  every  bond,  suit,  judgment,  and  execution 

*  ♦  *  had  or  made  to  or  for  any  intent  or  purpose  before  declared 
and  expressed  shall  be  from  henceforth  deemed  and  taken  (only 
against  that  person  or  persons,     *    *    *    w'hose  actions,  suits,  debts, 

*  *  *  by  such  guileful,  covinous,  or  fraudulent  devices  and  prac- 
tices, *  *  *  nre  *  *  *  in  any  ways  disturbed,  hindered, 
delayed,  or  defrauded)  to  be  clearly  and  utterly  void.  *  *  *" 
St.  13  Eliz.  c.  5. 

109  Cadogan  v.  Kennett,  1  C!owp.  432,  per  Lord  Mansfield;  Hamilton 
v.  Russel,  1  a-anch  (U.  S.)  809,  31G,  2  L.  Ed.  118,  per  Marshall, 
C.  J. ;  Sturtevant  v.  Ballard,  9  Johns,  (N.  Y.)  337,  338,  6  Am.  Dec. 
281,  per  Kent,  C.  J. 

no  Dyer  v.  Homer,  22  Pick.  (Mass.)  258;  Butler  v.  Moore,  73  Me. 
151,  40  Am.  Rep.  348.  By  force  of  the  common  law,  transfers  of 
goods  and  chattels  with  intent  to  defraud  creditors  are  voidable, 
though  "goods  and  chattels"  are  not  named  iu  the  Minnesota  stat- 
ute.   Byrnes  v.  Volz,  53  Minn,  110,  54  N.  W.  942. 


§§  58-59)  FKAUD    ON    CKKDITOKS.  109 

Mutual  Intent  to  Dcj'raud. 

A  sale  is  not  fraudulent  against  creditors  unless  the  intent  to 
delay,  hinder,  or  defraud  them  is  shared  by  the  grantee  as  well 
as  by  the  debtor."^  Therefore  the  mere  intent  on  the  part  of 
the  debtor  to  defeat  a  creditor  will  not  avoid  a  sale  as  fraud- 
ulent, if  it  be  made  bona  fide  and  fur  a  valuable  consideration."' 
It  is  sufficient  if  the  consideration  be  a  past  indebtedness.  For 
it  is  not  fraudulent  at  common  law  to  prefer  one  creditor  to 
another.  If  the  debtor  is  unable  to  pay  all  his  debts,  he 
commits  no  fraud  (in  the  absence  of  statutory  provisions  reg- 
ulating the  distribution  of  insolvent  estates)  by  appropriating 
his  property  to  the  satisfaction  of  one  or  more  of  his  creditors 
to  the  exclusion  of  all  others."^  Nor  does  it  make  any  dif- 
ference that  both  debtor  and  creditor  know  that  the  effect  of 
such  appropriation  will  be  to  deprive  other  creditors  of  the 
l)Ower  of  reaching  the  debtor's  property  by  legal  process  in 
satisfaction  of  their  claims,  or  that  such  is  actually  the  intention 
of  the  debtor ;  provided  there  is  no  secret  trust  agreed  upon  or 
understood  between  the  debtor  and  creditor  in  favor  of  the 
former,  and  that  the  sole  object  of  the  latter  is  to  obtain  pay- 
ment or  security  for  his  debt."*  But  if  the  purpose  of  the 
debtor  is  to  defraud  his  creditors,  and  that  purpose  is  partici- 
pated in  by  the  preferred  creditors,  although  the  principal  pur- 
pose of  the  conveyance  is  to  secure  a  bona  fide  debt  of  the  lat- 
in liindskopf  v.  Myers,  87  Wis.  SO,  57  N.  W.  907. 
n2  Wood  V.  Dixie,  7  Q.  B.  S02;  Darvill  v.  Terry,  G  Hurl.  &  N.  807, 
30  Law  J.  Exch.  355;  Beurmann  v.  Van  Burcu,  44  Mich.  4U6,  7  N. 
W.  C7.  Creditors  caunot  complain  of  a  transfer  of  exempt  prop- 
erty. Bresnahan  v.  Nugent,  t>2  Mich.  70,  52  N.  W.  735;  Nash  v.  Stev- 
ens, 90  Iowa.  016,  05  N.  W.  825. 

ii3Holbird  v.  Ander.son,  5  Term  R.  235;  Marbury  v.  Brooks,  7 
Wheat  (U.  S.)  5.-;0.  5  L.  Ed.  522;  Brooks  v.  Marbury,  11  Wheat  (U. 
S.)  78,  0  L.  Ed.  423;  Smith  v.  Skeary,  47  Conn.  47;  Ferguson  v. 
Spear,  05  Me.  277;  York  County  Bank  v.  Carter.  38  Ta.  4  10.  80  Am. 
Deo.  494;  (Jage  v.  Chesebro,  49  Wis.  480,  5  N.  W.  881;  Butler  v. 
White,  25  Minn.  432. 

iKBanneld  v.  Whipple.  14  Allen  (Mass.)  13,  15;  Carr  v.  Brigps, 
1.50  Mass.  78,  81,  30  N.  E.  470;  Dudley  v.  Danforth,  01  N.  Y.  02<); 
II»'ssinR  V.  McCloskey,  37  111.  341;  Sexton  v.  Anderson,  95  Mo.  373.  8 
S.  W.  T^^V^\  Hir.soh  v.  Richardson.  65  Miss.  227,  3  South.  509;  Jewell 
V.  Knight  123  U.  S.  420,  434,  8  Sup.  Ct  193,  31  L.  Ed.  190;  Nichola 
V.  Bancroft,  74  Mich.  191,  41  N.  W.  891. 


200  FRAUD   AND   RETENTION    OF   POSSESSION.  (Ch.  5 

ter,  the  conveyance  is  wholly  void  as  to  the  creditors  intended 
to  be  defrauded."' 

In  respect  to  the  necessity  of  mutual  fraudulent  intent,  con- 
veyances for  a  valuable  consideration  differ  from  voluntar}'  con- 
veyances. The  latter  may  be  avoided  where  a  fraudulent  intent 
on  the  part  of  the  debtor  exists,  although  the  grantee  did  not 
share  it."° 

Retention  of  Possession. 

\\'hether  a  transfer  of  goods  is  bona  fide  or  fraudulent  is 
now  generally  held  to  be  a  question  of  fact  for  the  jury.  Few 
questions  in  the  law,  however,  have  given  rise  to  greater  con- 
flict of  authority  than  that  of  the  effect  of  retention  of  possession 
by  the  grantor  upon  the  bona  fides  of  the  transaction.  Reten- 
tion of  possession  and  use  by  the  grantor  was  resolved  in 
Twyne's  Case,^^^  the  leading  case  upon  the  subject  of  fraudu- 
lent conveyances,  to  be  a  sign  of  fraud.  In  Edwards  v.  Har- 
ben,^^^  it  was  held  that  if  there  be  nothing  but  the  absolute  con- 
veyance without  transfer  of  possession,  the  transaction  is  in 
point  of  law  fraudulent;  but  later  decisions  in  England  es- 
tablish the  proposition  that  continued  possession  is  a  fact  to  be 
considered  by  the  jury  as  evidence  of  fraud,  but  it  is  not  fraud 
per  se.^^^ 

Probably  the  prevailing  view  in  the  United  States,  where 
the  question  is  unaffected  by  statute,  is  that  retention  of  pos- 
session is  prima  facie  evidence  of  fraud,  but  that  the  good  faith 
of  the  transaction  may  be  shown;  ^-^  but  in  some  jurisdictions 

3  16  Harris  v.  Sumner,  2  Pick.  (Mass.)  137;  Crowninshiekl  v.  Kit- 
tridge,  7  Mete.  (Mass.)  520;  Bean  v.  Smith,  2  Mason  (U,  S.)  252,  Fed. 
Cas.  No.  1,174. 

116  Blake  v.  Sawin,  10  Allen  (Mass.)  340;  Young  v.  Heermans,  66 
N.  Y.  374;  Laughton  v.  Harden,  68  Me.  208;  Wilson  v.  Spear,  68 
Vt.  145,  34  Atl.  429. 

117  3  Coke,  SOb;    1  Smith,  Lead.  Cas.  1. 

118  2  Term,  R.  587. 

ii»  Martindale  v.  Booth,  3  Barn.  &  Adol.  498;  Cookson  v.  Swrie,  9 
App.  Cas.  653,  064,  per  Lord  Blackburn,  who  points  out  that  it  was 
to  put  a  stop  to  the  evils  growing  out  of  this  rule  that  the  bills  of 
sales  acts  were  passed, — acts  of  similar  character  to  the  chattel 
mortgage  acts  in  this  country. 

120  Crawford  v.  Ncal,  144  U.  S.  585,  12  Sup.  Ct  759,  36  L.  Ed. 
.".52;    Brooks   v.   Powers,   15   Mass.   247,   8  Am.   Dec.   99;    Allen   v. 


§§  5S-59)  ruADD  ON  ckkditous.  2<il 

it  is  held  that  retention  of  possession  is  conclusive  proof  of 
fraud.* *^  In  many  states  statutes  have  been  passed,  sonic  de- 
claring sales  without  transfer  of  possession  fraudulent,''-  am! 
others  declaring  them  merely  prima  facie  fraudulent.'-'  In 
jurisdictions  where  the  rule  i)rcvails  that  retention  of  posses- 
sion is  only  prima  facie  evidence  of  fraud,  some  courts  hold 
that  a  constructive  delivery,  as  by  an  agreement  on  the  part  of 
the  seller  to  hold  as  bailee,  is  sufficient,'-*  and  other  courts  de- 
clare that,  if  the  subject  of  sale  is  not  reasonably  capable  of  de- 
livery, a  "constructive  delivery"  is  sufficient,  giving  a  somewhat 
loose  construction  to  that  term.''"'  Perhaps  the  true  rule  is. 
where  there  is  no  actual  delivery,  that  the  nature  of  the  goods 
and  the  impossibility  or  difficulty  of  transferring  possession, 
and  the  situation  of  the  parties,  with  all  other  circumstances 
tending  to  show  that  the  possession  after  the  sale  was  in  pur- 
Wheeler.  4  Gray  (Mass.)  123;  Briggs  v.  Weston,  30  Fla.  029,  18 
South.  852;  Smith  v.  Jones,  03  Ark.  232,  37  S.  W.  lo.VJ;  (ioodwln 
V.  Goodwin,  90  Me.  23.  37  Atl.  352,  00  Am.  St.  Hep.  231;  Teague 
V.  Hass,  131  Ala.  422,  31  Sonth.  4. 

121  Hatstat  V.  Blakeslee,  41  Conn.  302;  Parker  v.  Marvel),  00 
N.  H.  30;  Weeks  v.  Prescott,  53  Vt.  57;  Stephens  v.  Gifford,  137 
Pa.  219,  20  Atl.  542,  21  Am.  St.  Rep.  808;  Lehr  v.  Brodbeck.  192 
Pa.  535.  43  Atl.  lOOG,  73  Am.  St  Kep.  828;  Hadden  v,  Dooley,  92 
Fed.  274,  34  C.  C.  A.  338. 

It  is  immaterial  that  the  creditor  has  notice  of  the  sale.  War- 
wick Iron  Co.  v.  Bank  (Pa.)  13  Atl.  79.  See,  also,  Perrin  v.  Ree<i. 
35  Vt.  2;  Lawrence  v.  Burnham,  4  Nev.  301,  97  Am.  Dec.  540;  Bas- 
singer  v.    Si)angler,  9  Colo.   175,   10  Pac.  809. 

122  See  Stanley  v.  Coke  Co.,  24  Oolo.  103,  49  Pae.  35;  George  v. 
Matonni,  123  Cal.  172.  .55  Pac.  775,  50  Pac.  53;  State  v.  Goetz,  131 
Mo.  075,  33  S.  W  101;  Howard  v.  Dwight,  8  S.  D.  398,  00  N.  W. 
935. 

123  See  Kipp  v.  Lainoreaiix,  81  Mich.  299.  45  N.  W.  1002;  Hop- 
kins V.  Bishop,  91  Mich.  328,  51  N.  W.  902,  30  Am.  St.  Kep.  480; 
Mackelliir  v.  Pillsbury.  48  Minn.  390.  51  N.  W.  222;  I'hilips  v.  Reltz, 
10  Kan.  390;  Deusmore  Commission  Co.  v.  Shong.  98  Wis.  3S0,  74  N. 
W.  114;  Menken  v.  Baker,  40  App.  Div.  009.  57  N.  Y.  Supp.  541,  af- 
lirmed  100  N.  Y.  628,  CO  N.  E.  1110;  Higgins  v.  Spahr,  145  Ind.  107, 
43  N.  E.  11;  Conrad  v.  Smith,  0  N.  D.  337,  70  N.  W.  815.  See,  also. 
Willlston,  Cas.  Sales.  384.  note. 

124  Shaul  V.  Harrington,  54  Ark.  305,  15  S.  W.  835;  Hlght  v.  Har- 
ris, 50  Ark.  98.  19  S.  W.  235.  Contra:  Seavey  v.  Walker,  lUS  In  1. 
78,  9  N.  E.  347. 

i2BLathrop  v.  CTlayton,  45  Minn.  124,  47  N.  W.  514. 


202  FRAUD  AND   RETENTION   OF  POSSESSION.  (Ch.  5 

suance  of  some  agreement  not  inconsistent  with  the  honesty  of 
the  transaction,  are  admissible  in  evidence  to  show  its  good 
faith."'  In  jurisdictions  where  the  retention  of  possession  by 
the  seller  is  conclusive  proof  of  fraud,  retention  of  possession 
in  accordance  with  the  terms  of  the  transfer  is  generally  im- 
material, and  an  actual  delivery  is  required,  unless  the  subject 
of  the  sale  is  not  reasonably  capable  of  an  actual  delivery,  in 
which  case  it  is  only  necessary  that  the  buyer  should  assume 
control  of  the  subject,  so  as  reasonably  to  indicate  to  all  con- 
cerned the  fact  of  the  change  of  ownership. ^^'^  A  full  con- 
sideration of  the  conflicting  decisions  concerning  the  effect  of  re- 
tention of  possession  and  of  the  various  statutory  provisions 
cannot  be  attempted  in  an  elementary  book.^^^ 

In  some  jurisdictions  the  rule  prevails  that  delivery,  actual  or 
constructive,  is  necessary  to  perfect  the  title  of  the  buyer  as 
against  bona  fide  subsequent  purchasers  and  attaching  credit- 
ors,^-°  and  the  question  how  far  delivery  is  essential  to  trans- 
fer title  is  to  be  distinguished  from  the  question  how  far  re- 
tention of  possession  by  the  seller  is  fraudulent. 

It  is  to  be  observed  that  many  of  the  statutes  which  deal  with 
the  effect  of  retention  of  possession  include  bona  fide  pur- 
chasers among  those  as  to  whom  the  sale  is  to  be  deemed  f  raud- 
ulent.^30 

126  See  Ingalls  v.  Herrick,  108  Mass.  351,  11  Am.  Rep.  360. 

127  McKibbin  v.  Martin,  6i  Pa.  352,  3  Am.  Rep.  588;  Lehr  v,  Brod- 
beck,  102  Pa.  535,  43  All.  1006,  73  Am.  St.  Rep.  828. 

128  Sales  Act,  §  26,  does  not  attempt  to  lay  down  a  uniform  rule  as 
to  the  effect  of  retention  of  possession,  but  simply  provides  in  ef- 
fect that,  if  under  the  local  rule  the  retention  Is  fraudulent,  the 
sale  is  void  as  to  creditors. 

129  Post,  p.  2C4. 

130  Thus  the  Minnesota  statute  provides:  "Every  sale  by  a  vendor 
of  goods  and  chattels  in  his  possession  or  under  his  control,  and 
every  assignment  of  goods  and  chattels,  imless  the  same  is  accom- 
panied by  an  immediate  delivery,  and  followed  by  an  actual  and 
continued  change  of  possession  of  the  things  sold  or  assigned,  shall 
be  presumed  to  be  fraudulent  and  void  as  against  the  creditors  of 
the  vendor  or  assignor  and  subsequent  purchasers  in  good  faith, 
unless  those  claiming  under  such  sale  or  assignment  make  it  ap- 
pear that  the  same  was  made  in  good  faith,  and  without  any  intent 
to  hinder,  delay,  or  defraud  such  creditors  or  purchasers."  Rev. 
Laws  1005,   §  3406. 


§§  58-59)  FKADD   ON    CREDITORS.  203 

Who  are  Creditors. 

A  sale  may  be  fraiululent  as  to  siiliscqiient  as  well  as  exist- 
ing creditors;  and,  if  it  is  fraudulent  as  to  existing  creditors,  it 
may  be  avoided  by  subsequent  creditors.^'*  The  term  "credit- 
ors" includes  persons  having  claims  sounding  in  tort*** 

/effect  of  Fraud. 

Sales  which  are  fraudulent  as  to  creditors  are  nevertheless 
valid  between  the  parties,  who  are  not  allowed  to  defeat  them  by 
alleging  their  own  fraud. ^^^  And,  although  the  statute  declares 
that  such  sales  shall  be  void,  they  are  in  fact  merely  voidable, 
at  the  option  of  the  defrauded  creditors.  And,  therefore,  as 
in  the  case  of  sales  voidable  by  one  of  the  parties  for  the  fraud 
of  the  other,  bona  fide  purchasers  for  value  from  the  fraudulent 
buyer  before  avoidance  acquire  an  indefeasible  title. ^^*  A  fur- 
ther illustration  of  the  voidable  character  of  the  transaction  is 
the  right  which  the  buyer  has  to  purge  it  of  the  fraud  by  the 
payment,  before  avoidance,  of  an  adequate  consideration.^" 

181  Day  V.  Cooley,  118  Mass.  524;  McLane  v,  Johnsou,  43  Vt. 
48;  Hook  v.  Mowre,  17  Iowa,  195;  Jones  v.  King,  SG  111.  •22:>;  Plunk- 
ett  V.  riunkett.  114  Ind.  4&4,  IG  N.  E.  G12,  17  N.  E.  5G2;  Byrnes  v. 
Volz,  53  Minn.  110,  54  N.  W.  942. 

i"!- Damon  v.  Bryant,  2  Pick.  (Mass.)  411;  Jackson  v.  Myers,  18 
Johns.  (N.  Y.)  425.  A  wife  suing  for  a  divorce  and  alimony  is  a 
"creiHtor."  Byrnes  v.  Volz.  5;j  Minn.  110.  rA  N.  W.  942.  See,  also, 
Llvermore  v.  Boutelle,  11  Gray  (Mass.)  217,  71  Am.  Deo.  7GS. 

133  Dyer  v.  Homer,  22  Pick.  (Mass.)  253;  Harvey  v.  Varney,  98 
Mass.  US;  Osborne  v.  Moss,  7  Johns.  (X.  Y.)  IGl,  5  Am.  Dec.  252; 
Telford  v.  Adams.  G  Watts  (Pa.)  429;  Carpenter  v.  McClure,  39  Vt. 
9.  91  Am.  Dec.  370;  Springer  v.  Drosch.  32  Ind.  4SG,  2  Am.  Rep.  356; 
Clemens  v.  Clemens,  28  Wis.  G37.  9  Am.  Rep.  520;  Butler  v.  Moore, 
73  Me.  151,  40  Am.  Rep.  348;  Gary  v.  Jacobson,  55  Miss.  204.  30 
Am.  Rep.  .514.  Conlra  :  Nellis  v.  Clark.  20  Wend.  (N.  Y.)  24 ;  Id., 
4  Hill  (N.  Y.)  424;  Church  v.  Muir.  33  N.  J.  Law,  318;  Gross  v. 
Gross.  94  Wis.  14.  G8  N.  W.  400. 

134  Bean  v.  Smith,  2  Mason  (U.  S.)  2.52.  Fed.  Gas.  No.  1.174;  Green 
V.  Tanner.  8  Mete.  (Mass.)  411 ;  Anderson  v.  Roberts,  18  Johns. 
(N.  Y.)  .515.  9  Am.  Deo.  235;  Neal  v.  Williams.  18  Me.  391;  Comcy 
V.  Pickering.  03  N.  H.  126;    Gordon  v.  Ritenonr.  87  Mo.  54. 

135  Oriental  Bank  v.  Ilaskins.  3  Mete.  (Ma.ss.)  332,  .37  Am.  Deo.  140; 
llutfhins  V.  Sprague.  4  N.  H.  4G9.  17  Am.  Deo.  439;  Bean  v.  Smith. 
2  Mason  (U.  S.)  2.52.  278.  Fed.  Cas.  No.  1.174.  Contra:  Morrill  v. 
Meachum,  5  Day  (Conn.)  341;  Preston  v.  Crofut,  1  Conn.  527,  note; 
Roberts  v.  Anderson.  3  Johns.  Ch.  (N.  Y.)  371. 


204  FRAUD   AND   RETENTION   OF  POSSESSION.  (Cll.  5 


nO'W  FAR   DELIVERY  IS  ESSENTIAI.  TO   TRANSFER   OF 
PROPERTY    AGAINST    CREDITORS    AND    PUR- 
CHASERS. 

60.  In  some  states,  in  exception  to  the  general  principle 
that  delivery  is  not  essential  to  the  transfer  of  the 
property,  a  rule  prevails  that  delivery  is  essential 
to  such  transfer  as  against  bona  fide  purchasers  and 
attaching  creditors  without  notice. 

While  it  is  universally  held  that  delivery  is  not  necessary 
to  transfer  the  property  in  the  goods  sold  as  between  seller  and 
buyer,^^^  a  rule  prevails  in  some  states,  as  has  already  been 
pointed  out,  that  delivery  is  necessary  to  transfer  the  property 
as  against  subsequent  purchasers  and  attaching  creditors  with- 
out notice  of  the  prior  sale.  A  discussion  of  this  rule,  though 
logically  falling  under  the  head  of  the  transfer  of  the  property, 
can  more  conveniently  be  made  here. 

The  question  how  far  delivery  is  essential  to  a  transfer  of  the 
property  against  purchasers  and  attaching  creditors  is  to  be  dis- 
tinguished from  the  question  how  far  retention  of  possession  is 
fraudulent  as  to  creditors. ^^"^  Even  in  jurisdictions  which 
agree  upon  the  rule  that  delivery  is  necessary  for  a  transfer 
of  the  property  against  purchasers  and  attaching  creditors, 
varying  rules  prevail  as  to  the  effect  of  retention  of  possession 
as  evidence  of  fraud. ^^*  The  leading  case  in  support  of  the 
rule  that  delivery  is  necessary  to  transfer  the  property  as 
against  subseqeuent  purchasers  and  attaching  creditors  is  Lan- 

186  Ante,  p.  121  et  seq.  is?  Aute,  p.   200. 

138  For  example,  in  Massachusetts,  the  continuance  of  the  seller 
in  possession  is  not  of  itself  enough  to  render  the  sale  void  as 
fraudulent,  but  is  a  fact  to  be  considered  as  evidence  of  fraud,  which 
may  be  rebutted  by  proof  that  it  was  a  sale  for  value  and  in  good 
faith,  and  that  possession  was  retained  under  an  agi-eement  not 
inconsistent  with  honesty  in  the  transaction.  Brooks  v.  Powers,  15 
Mass.  247,  8  Am.  Dec.  90;  Shurtleff  v.  Willard,  19  Pick,  202,  211; 
Green  v.  Rowland,  16  Gray,  58;  Usher,  Sales,  §  292;  and  cf.  Id,  § 
140  et  seq.  The  rule  in  Maine  Is  the  same.  Reed  v.  Jewett,  5 
Greenl.  (Me.)  96.  In  New  Hampshire,  if  the  seller  fails  to  explain 
the  want  of  change,  it  is  conclusive  evidence  of  fraud.  Coburn  v. 
Pickering,  3  N.  H.  428;  Ooolidge  v.  Melvin,  42  N.  H.  516.  See  19 
Ilarv.  Law  Rev.  pp.  569,  570. 


§  60)        DKLIVKKY    AS   TO   CKKDlTOItS   AND    I'UKCHASEUS.  20.". 

fear  V.  Suiniicr/''"  in  which  an  assigfnment  of  tea  then  on  a  sliip 
at  sea  was  niatlc  to  a  bona  fide  creditor,  and  upon  its  arrival, 
and  before  the  assignee  could  lake  possession,  the  tea  was  at- 
tached by  a  second  creditor  without  notice  of  the  prior  as- 
siijnnicnt.  In  an  action  of  trover  by  the  assic^nee  against  the 
sheriff,  who  levied  the  attachment,  it  was  held  that  the  want  of 
delivery  was  fatal  to  the  plaintiff's  title.  The  court  said:  "De- 
livery of  possession  is  necessary  in  a  conveyance  of  personal 
chattels  as  against  every  one  but  the  vendor.  When  the  same 
goods  arc  sold  to  two  different  persons,  by  conveyances  equally 
valid,  he  who  first  lawfully  acquires  the  possession  will  hold 
against  the  other."  This  case  has  been  followed  in  Massachu- 
setts ^*°  and  some  other  states, ^''^  though  the  rule  is  opposed 
to  the  general  principle,  elsewhere  recognized,  that  delivery 
is  not  essential  to  a  transfer  of  the  property. ^''^  A  leading  case 
against  this  rule  is  Meade  v.  Smith, ^*^  in  which  the  seller  gave  a 
bill  of  sale  to  the  buyer,  both  parties  being  in  New  York,  and 
the  buyer  went  at  once  to  Connecticut,  where  the  goods  were, 
to  take  possession,  but  in  the  meantime  they  had  been  attached 
by  a  creditor  of  the  seller  without  notice  of  the  prior  sale,  and 
it  was  held  that  the  sale  was  not  invalid  for  lack  of  delivery, 
there  being  no  want  of  diligence  on  the  part  of  the  buyer  in 
taking  possession.  "This  claim  proceeds,"  said  Storrs,  J., 
"on  the  ground,  not  that  the  want  of  a  change  of  possession 
furnishes  evidence  of  fraud  in  the  sale,  and  that  but  for  such 


i-TO  17  >r.iss.  no,  9  Am.  Doc.  119. 

MODeuipsoy  v.  Gardnor.  IL'7  Mass.  381,  34  Am.  Rep.  3S0;  Ilall- 
garten  v.  OlcUiam,  135  Muss.  1,  4G  Am.  Rep.  433. 

Ki  Fairliekl  Bridge  Ck).  v.  Nye,  60  Me,  372;  Reed  v.  Reed,  70 
Me.  504;  Cunimings  v.  Gilman,  00  Me.  524.  38  Atl.  538;  Crawford 
V.  Forristall,  58  N.  IL  114;  Burnell  v.  Robertson,  5  Gilman  (lil.> 
282;  Ilusolile  v.  Morris.  131  111.  5S7,  23  N.  E.  G43.  See,  also,  Jewett 
V.  Lincoln,  14  Me.  IIG,  31  Am.  Dec.  30;  Winslow  v.  Leonard,  24  Pa. 
14,  G2  Am.  Dec.  3&4;   Kirven  v.  Pinckney,  47  S.  C.  220,  25  S.  E.  202. 

n2Ante,  p.  121.  See  Moycrstcin  v.  P.arber,  L.  R.  2  C.  P.  3S.  51; 
Hallgarten  v.  Oldham,  135  Mass.  1,  4G  Am.  Rop.  433;  per  Holmes.  J.; 
Smith  V.  Jones,  03  Ark.  232,  37  S.  W.  1052. 

1*3  16  Conn.  34G.  This  case  seems  not  inconsistent  with  the 
rule  prevailing  in  Connecticut  that  rotentioa  of  possession  is  usual- 
ly conclusive  evidence  of  fraud.  See  Hatstat  v.  Blakeslee,  41  Conn. 
:'.01. 


206  TRAUD  AND   RETENTION   OF   POSSESSION.  (Ch.  5 

fraud  the  property  would  pass  to  the  vendee,  as  against  such 
purchasers  and  creditors,  but  that,  as  to  them,  there  is  no 
transfer  of  the  property  notwithstanding  there  be  no  fraud  by 
reason  of  such  want  of  possession ;  in  other  words,  that  as  to 
them,  before  such  change  of  possession,  the  title  of  the  vendee 
is  merely  inchoate  and  incomplete."  And  the  decision  rests 
upon  the  ground  that  "want  of  delivery  to,  or  of  the  continu- 
ance of  possession  by,  the  vendee,  is  in  no  case  considered  in  any 
other  light  than  as  furnishing-  evidence  of  fraud  in  the  sale ;  and 
where,  for  want  of  such  delivery  or  continuance  of  possession, 
'*  the  sale  has  been  pronounced  void,  it  was  only  on  the  ground 
of  such  fraud." 

The  rule  requiring  delivery,  unlike  that  which  makes  reten- 
tion of  possession  evidence  of  fraud,  does  not  operate  in  favor 
of  purchasers  or  creditors  who  have  notice  of  the  sale."*  It 
is  to  be  observed  that,  so  far  as  concerns  bona  fide  purchasers, 
the  law  in  England  has  been  changed  by  statute,  and  the  rule 
now  is  in  effect  that,  while  delivery  is  not  necessary  as  between 
the  parties,  it  is  necessary  as  against  such  purchasers. ^*'' 

What  Constitutes  Delivery. 

Where  the  rule  of  Lanfear  v.  Sumner  prevails,  if  the  trans- 
fer is  bona  fide  and  for  a  valuable  consideration,  very  slight 
evidence  is  necessary  to  give  a  preference  to  a  bona  fide  buyer 
as  against  an  attaching  creditor  of  the  seller.^ *^  If  the  buyer 
obtains  possession  before  any  attachment  or  second  sale,  the 
transfer  is  complete  without  formal  delivery. ^^'^  A  delivery  of 
a  part  in  token  of  the  whole  is  a  sufficient  constructive  delivery, 

1**  Ludwig  V.  Fuller,  17  Me.  162,  3-  Am.  Dec.  245;  Haskell  v. 
Greely,  3  Greenl.  (Me.)  425.  But  notice  to  the  oflBcer  holding  the 
writ  before  service,  but  uncomniiinicated  to  the  attaching  creditor, 
is  not  notice  to  such  creditor.  McKee  v.  Garcelon,  60  Me.  165,  11 
Am.  Rep.  200. 

1*0  Sale  of  Goods  Act,  §  25  (1).  This  change  was  first  intro- 
duced by  the  Factors'  Act  of  1880  (St.  52  &  53  Vict.  c.  45,  §  8).  This 
section  Is  substantially  followed  in  the  proposed  American  Sales 
Act,  §  25.     Ante,   p.  32. 

14  0  Shumway  v.  Ruttor,  8  Tick.  (Mass.)  443,  19  Am.  Dec.  340;  Har- 
dy V.  Potter.  10  Gray  (Mass.)  89;  Stinson  v.  Clark,  6  Allen  (Mass.) 
340;  In'_'ails  v.  Herrick,  108  Mass.  351,  11  Am.  Rep.  360;  In  re 
Pease  Car  &  Locomotive  Works  (D.  C.)  134  Fed.  919, 

147  Shumway  v.  Rutter,  8  Pick.  (Mass.)  443,  19  Am.  Dec.  340. 


§  GO)        DKUVKIiY    AS    TO    CKKUITOKS    AND    I'UKCIIASKIIS.  2()7 

although  the  goods  arc  in  the  possession  of  various  persons.'** 
And  where  there  can  be  no  manual  delivery,  as  in  the  case  of 
goods  at  sea,  a  symbolical  delivery,  as  of  a  bill  of  lading,  is 
a  good  delivery.^*"  So  the  delivery  of  a  bill  of  sale  of  a  ship 
at  sea  is  valid,  provided  the  buyer  takes  actual  possession  as 
soon  as  he  reasonably  can.'""  The  delivery  of  the  key  of  a 
warehouse  where  the  goods  are  stored  is  a  good  delivery.'"^ 
If  the  goods  are  in  the  possession  of  the  seller,  it  is  enough  if  he 
agrees  to  hold  as  bailee  for  the  buyer."^  If  they  are  in  the  pos- 
session of  a  third  person,  it  is  enough  if  notice  of  the  sale  is  giv- 
en to  him  and  he  does  not  dissent.^"'  But  the  mere  delivery 
of  a  bill  of  sale  without  delivery,  actual  or  constructive,  is  not 
enough.*'*  Some  of  these  cases  are  hard  to  reconcile  with 
the  statement  of  Holmes,  J.,  in  a  recent  case,^''"  that  the  de- 
livery required  by  the  rule  in  Lanfcar  v.  Sumner  is  delivery 
in  its  natural  sense, — that  is,  change  of  possession, — for  it  is 
generally  held,  in  connection  with  other  branches  of  sale,  that 
mere  notice  to  a  bailee  without  his  attornment  does  not  con- 
stitute delivery.  In  the  latter  case  it  was  held  that  the  indorse- 
ment and  delivery  by  the  bailor  of  a  receipt  for  goods  stored  in 
a  private  warehouse,  making  the  goods  deliverable  to  the  bailor 
on  the  payment  of  charges,  but  not  to  his  order,  did  not  pass  the 
title  as  against  a  creditor  attaching  the  goods  before  notice  to 
and  attornment  by  the  bailee. 

148  Legg  V.  Willard,  17  Pick.  (Mass.)  140,  28  Am.  Dec.  282;  Hobbs 
V.  Carr.  127  Mass.  532.  And  see  Parry  v,  Llbbey,  1G6  Mass.  112. 
44  N.  B.  124. 

1*0  Tratt  V.  Tarkinan,  24  Pick.  (Mass.)  42. 

ICO  Carter  v.  Willard.  19  Pick.  (Jiass.)  1,  9,  11 ;  Conard  v.  Insur- 
ance Co.,  1  Pet.  (U-  S.)  38G.  389.  7  L.  Ed.  189;  Wheeler  v.  Suuiner, 
4  Mason  (U.  S.)  183,  Fed.  Cas.  No.  17,501. 

if'^  Packard  v.  Dunsmore,  11  Cush.  (Mass.)  282;  Vining  v.  Gilbreth, 
39  Me.  49G. 

162  Soo  Ingalls  v.  Herriok,  108  Mass.  3.51,  11  Am.  Rop.  300. 

1"  Carter  v.  Willard,  19  Pick.  (Mass.)  1;  Russell  v.  O'Brien,  127 
Mass.  349.  And  see  Union  Stockyard  &  Transit  Co.  v.  Mallory. 
Son  &  Zimmerman  Co.,  157  111.  554,  41  N.  II  SS8.  48  Am.  St.  Rep. 
341. 

164  Dempsey  v.  Gardner,  127  Mass.  381,  34  Am.  Rep.  3S9;  Farrar 
V.  Smith,  G4   Me.  74. 

155  Hallgarton  v.  Oldham.  l.T.  Mass.  1,  40  Am.  Rep.  4.33.  See, 
also,  Gill  V.  Frank,  12  Or.  .'507,  8  Pac.  7G4,  53  Am.  Rep.  378. 


208  ILLEGALITY.  (Ch.  G 

CHAPTER  VL 

ILLEGALITY. 

61-62.  In  General. 

63-64.  Sales  Prohibited  by  Common  Law. 

65.  Sales    Prohibited   by    Statute. 

66-68.  Effect  of  Illegality. 

69.  Conflict  of  Laws. 

IN  GENERAI,. 

61.  An  agreement   is   not   enforceable    at  law,   and   therefore 

does  not  result  in  a  contract,  if  its  object  is  illegal. 

62.  CLASSIFICATION    OF    UNLAWFUL    SALES.       Unlawful 

sales  may  be  classified  as  sales  prohibited  by— 

(a)  The  common  law,  or 

(b)  Statute. 

To  result  in  a  contract,  an  agreement  must  create  an  obliga- 
tion; and  it  does  not  create  an  obligation  if  it  be  such  that  the 
courts  cannot  enforce  it.  An  agreement,  therefore,  which  is 
illegal  or  unlawful,  is  in  fact  no  contract  at  all,  although  it  is 
often  spoken  of  as  an  illegal  contract.^  Certain  limitations  are 
imposed  by  law  upon  the  freedom  of  contract.  Certain  con- 
tracts of  sale,  either  because  of  the  subject-matter  of  the  sale, 
or  because  of  the  purpose  for  which  the  sale  is  entered  into,  or 
because  certain  requirements  of  the  law  have  not  been  complied 
with,  or  because  of  other  reasons,  are  prohibited.  If  an  agree- 
ment to  sell  contemplates  an  illegal  sale,  the  law  will  not  en- 
force the  agreement,  although  all  the  other  elements  nec- 
essary to  the  formation  of  a  valid  contract  may  be  present. 
If  the  agreement  has  been  executed,  by  the  delivery  of  the 
goods  or  the  payment  of  the  price,  the  court  will  not  as  a  rule 
lend  its  aid  to  either  party  to  recover  what  he  has  paid  or  de- 
livered. The  effect  of  the  illegality  upon  the  rights  of  the 
parties,  however,  will  be  considered  later.^ 

The  modes  in  which  the  law  expresses  its  disapproval  of 

1  Clark,   Cont.   (2d.  Ed.)  254.  a  Post,  p.  219. 


§§  63-C4)       SALES   PROHIBITED   BY   COMMON    I.AW.  209 

certain  contracts  may  be  roughly  described  as  prohibition  (1) 
by  express  rules  of  the  common  law  ;  (2)  throujj^h  the  interpre- 
tation of  the  courts  of  the  policy  of  the  law;  and  (3)  by  stat- 
ute. The  first  two  arc  not  easy  to  distinguish  because  certain 
of  the  rules  which  have  been  formulated  by  the  courts  on  mat- 
ters of  public  policy  have  become  in  effect  rules  of  tiie  common 
law.^  So  far  as  concerns  the  law  of  sales,  the  subject  may  be 
discussed  under  the  first  and  third  heads, 

SALES  PROHIBITED  BY  COMMON  LA'W. 

63.  An  agrccuicnt  to  sell  is  illegal  at  coiunion  la-w  if  the  thing 

to  be  sold   is  in  itself    contrary  to   good   morals   or  de- 
cency. 

64.  Although  the    thing  to   be    sold   is   innocent  in   itself,   the 

agreement   is   illegal — 

(a)  If  it  provides  that   the   thing  is   to   be   applied   to   an   il- 

legal purpose. 

(b)  If    the    buyer   intends    to    apply    the    thing    to    an    illegal 

pxu'pose,   and   the    seller   does    some   act   in   aid    of   such 
purpose. 

(c)  If  the  buyer  intends  to  apply  the  thing  to  a  purpose  in- 

volving a  heinous  criiue,  and  the  seller  knows  of  such 
intention. 

(d)  In  some  states,  if  the   sale  is  made  by  the  seller  xvith   a 

vieiv  to  the  buyer's  illegal  puriiose. 

In  most  jurisdictions,  mere  knowledge  on  the  seller's  part 
that  the  buyer  intends  to  apply  the  thing  to  an  illegal 
purpose  does  not  render  the   sale  illegal. 

Sale  of  Things  Contrary  to  Good  Morals. 

A  general  rule  of  the  coinmon  law  is  summed  up  in  the 
maxim.  "Ex  turpi  causa  non  oritur  actio."  Therefore  the  sale 
of  a  thing  wdiich  is  in  itself  contrary  to  good  morals  or  public 
decency  cannot  become  the  basis  of  an  action.  Sales  of  an 
obscene  book,*  and  of  indecent  prints  or  pictures,"  have  been  dc- 

8  Ansoo,  Cont.  1G3 ;  Clark,  Cont.  (2d  Ed.)  2.'.5.  Sales  prohibitinl 
l)y  public  policy  are  said  to  include:  (1)  Sales  of  offices;  (2)  salos 
by  which  the  seller  is  unreasonably  restrained  in  carrjMnff  on  his 
t.-ade;  and  (.3)  sales  of  lawsuits.  These  subjects  have  little  con- 
nection with  the  sale  of  pooils,  and  need  not  be  here  considered. 
See  Bonj.  Sales.  §§  ~>^2-->2U■,  Clark,  Cont.  (2d  Ed.)  281  et  seq. 

*  roplctt  v.  Stockdale.  Ryan  &  M.  337. 

6  Fores  V.  Johnes,  4  Esp.  07. 

TiFF.SAT,KR(2n  Ed.)— 14 


210  ILLEGALITT.  (Ch.  6 

Glared  illegal  and  void  at  common  law,'  although  upon  this  point 
there  have  been  few  decisions. 

Sale  of  Innocent  Thing  for  Unlawful  Purpose. 

Whether  the  sale  of  a  thing  in  itself  an  innocent  and  proper 
article  of  commerce,  when  the  seller  knows  that  it  is  intended 
to  be  used  for  an  immoral  or  illegal  purpose,  is  valid,  is  a 
question  on  which  the  authorities  disagree,  although  the  deci- 
sions in  this  country  are  fairly  reconcilable. 

The  earlier  English  cases  held  that  something  more  than  mere 
knowledge  on  the  part  of  the  seller  of  the  illegal  purpose  was 
necessary,  and  that  there  must  be  evidence  of  an  intention  on 
his  part  to  aid  in  the  illegal  purpose  or  to  profit  by  the  immoral 
act.''  Thus,  where  clothes  were  sold  to  a  prostitute,  with 
knowledge  that  they  were  for  the  purpose  of  enabhng  her  to 
pursue  her  calling,  it  was  held  that  this  was  not  enough,  but 
that  it  must  appear  that  the  seller  expected  to  be  paid  out  of  the 
profits  of  her  prostitution,  and  that  he  sold  the  clothes  to  en- 
able her  to  carry  it  on,  so  that  he  might  appear  to  have  done 
something  in  furtherance  of  it.®  And  so,  in  an  action  for  the 
price  of  spirits  sold  with  knowledge  that  the  defendant  in- 
tended to  use  them  illegally,  it  was  held  that  the  plaintiff  could 
recover,  since  to  deprive  him  of  his  right  to  payment,  it  was 
necessary  that  he  should  be  a  sharer  in  the  illegal  transaction.^ 
But  the  later  English  cases  overrule  this  distinction,  and  hold 
that  the  sale  is  void  if  the  seller  knows  of  the  illegal  purpose.^" 
Thus,  where  the  plaintiff  supplied  a  brougham  to  a  prostitute, 
it  was  held  not  necessary  to  show  that  he  expected  to  be  paid 
from  the  proceeds  of  her  calling;  that  his  knowledge  of  her 
calling  justified  the  jur\'  in  inferring  knowledge  of  her  purpose ; 
and  that  this  knowledge  rendered  the  agreement  void.^^ 

In  the  United  States  the  cases,  on  the  whole,  follow  substan- 


«BenJ.  Sales,  §  504. 

I  P.eiij.  Sales,  §  oOC  et  seq. 

8  liowry  V.  Bennet,  1  Camp.  348. 

»  Hodpson  V.  Temple,  5  Taunt.  181. 

10  Pearee  v.  I'.rooks,  L.  R.  i  Exch.  213;  Cannan  v.  Bryce.  3  Barn. 
&  Aid.  179.  See,  also,  McKinnell  v.  Robinson,  3  Mees.  &  W.  433; 
Anson.  Cont.  192;    Clark,  Cont.  (2d  Ed.)  327. 

II  Tearce  v.  Brooks,  L.  R.  1  Bxch.  213. 


§§63-64)        SALES   PROHIBITED   BY   COMMON    LAW.  1!11 

tially  tlic  earlier  English  doctrine,  and  hold  that  mere  knowl- 
edge of  the  huyer's  unlawful  purpose  does  not  invalidate  the 
sale,'-  though  all  agree  that  the  sale  is  void  if  it  be  a  part 
of  the  contract  of  sale  that  the  goods  are  to  be  used  for  an 
illegal  purpose,'"  or  if  the  seller  does  any  act  in  aid  of  the 
buyer's  unlawful  intention,  as  when  he  packs  goods  in  a  man- 
ner convenient  for  smuggling,  or  conceals  the  form  of  lifpior 
so  as  to  enable  the  buyer  to  evade  the  law,'*  or  marks  domestic 
sardines  as  French  to  assist  the  buyer  in  selling  them  as  such.** 
It  is  frequently  said,  however,  that  knowledge  of  the  bu}er's 
purpose  to  use  the  goods  in  the  commission  of  a  crime  which  is 
not  merely  malum  prohibitum  or  of  inferior  criminality  stands 

12  Tracy  v.  Taluiage,  14  N.  Y.  102,  67  Am.  Dec.  132;  Sortwcll  v. 
Hughes,  1  Curt.  (U.  S.)  244,  Fed.  Cas.  No.  13,177;  Green  v.  Collins, 
3  ClilY.  (U.  S.)  4i)4,  Fed.  Cas.  No.  5,755;  Hill  v.  Spear,  50  N.  H.  253. 
<J  Auj.  Uep.  205;  'J'uttle  v.  Holland.  43  Vt.  542;  Cheney  v.  Duke,  10 
GUI  &  J.  11;  Wallace  v.  Lark,  12  S.  C.  570,  32  Aui.  Rep.  510;  Bickel 
V.  Sheets,  24  Ind.  1;  Webber  v.  Donnelly,  33  Mich.  400;  Michael 
V.  liacon.  40  Mo.  474,  8  Am.  Rep.  138;  Anheuser-I'.usch  Brewing 
Ass'n  V.  Mason,  44  Miun.  318,  40  N.  W.  558,  0  L.  II.  A.  50t>,  20  Am. 
St.  Rep.  580;  J.  M.  Brunswick  &  Balke  Co.  v.  Valleau,  50  Iowa,  120, 
32  Am.  Rep.  119;  McKinney  v.  Andrews,  41  Te.\.  :'A\3:  Delavina 
V.  Hill,  05  N.  II.  94,  19  Atl.  1000;  Gaml>s  v.  Sutherland's  Estate,  101 
Mich.  :;55.  59  N.  W.  052.  Mclntyre  v.  Tarks,  3  Mete.  (Mass.)  207,  is  in 
line  with  these  decisions.  See,  also,  Dater  v.  Earl,  3  Gray  (Mas.)  4S2. 
But  there  are  strong  intimations  in  the  later  Massachusetts  cases 
that  the  law  is  the  other  way.  Suit  v.  AVoodhall,  113  Mass.  391.  395; 
Finch  V.  Mansiiold,  97  Mass.  89,  92;  Graves  v.  Johns(ni.  150  Mass. 
211,  30  N.  E.  818,  15  L.  R.  A.  834,  32  Am.  St.  Rep.  44(1.  per  Holmes, 
J.;  Clark.  Oait.  (2d  Ed.)  328.  See,  also.  Reed  v.  Brewer,  90  Te.\. 
144.  37  S.  W.  418;  Standard  Furniture  Co.  v.  Van  Alstine,  22  Wash. 
070,  02  Pac.  145,  51  L.  R.  A.  889,  79  Am.  St.  Rep.  900;  St.  Louis 
Fair  Ass'n  v.  Carmody,  151  Mo.  500,  52  S.  W.  305,  74  Am.  St.  Rep. 
571. 

13  Tracy  v.  Talmage,  14  N.  Y.  162,  170.  67  Am.  Dec.  132;  Green 
V.  Collins,  3  CliCf.  (U.  S.)  494.  501,  Fed.  Cas.  No.  5.755;  Clark,  Cont. 
481. 

i«  Gaylord  v.  Soragen,  32  Vt.  110,  70  Am.  Dec.  i."4  ;  Aiken  v.  Blais- 
dell.  41  Vt.  Cr,-,;  Skifif  v.  .Tohnson.  .57  N.  II.  475:  Bnnchor  v.  Mans.-l. 
47  Me.  58;  Knhn  v.  Melcher  (0.  C)  43  Fe<l.  041.  10  L.  R.  A.  4:59; 
Tracy  v.  Talniape.  14  N.  Y.  102.  07  Am.  Dec.  132;  Arnot  v.  Cna» 
Co..  08  N.  Y.  500.  23  Am.  Rep.  190;  Waymoll  v.  Reed,  5  Term  R. 
599. 

i»Materne  v.  Horwitz.  50  N.  Y.  Super.  Ct.  41;  Id.,  101  N.  Y.  409. 
5  N.  E.  331. 


212  ILLEGALITY.  (Ch.  6 

on  a  different  footing.^'  Thus  knowledge  that  goods  were  to  be 
used  in  aid  of  rebellion  has  been  held  to  avoid  their  sale.^'^  A 
few  authorities,  which  are  scarcely  to  be  reconciled  with  the 
weight  of  authority  in  this  country,  hold  that  the  sale  is  void 
if  made  "with  a  view  to"  the  illegal  purpose,  or  with  the  inten- 
tion of  enabling  the  buyer  to  accomplish  it;  ^^  but  if  the  con- 
tract does  not  provide  for  such  purpose,  and  the  seller's  con- 
nection with  the  transaction  is  confined  to  a  sale  of  the  goods, 
it  is  difficult  to  see  how  any  line  between  mere  knowledge  of 
the  purpose  and  conduct  in  aid  of  it  can  practically  be  drawn. 

16  Hanauer  v.  Doane,  12  Wall.  (U.  S.)  342,  20  L.  Ed.  439;  Tracy  v. 
Talinage,  14  N.  Y.  162,  67  Am.  Dec.  132;  Howell  v.  Stewart,  54 
Mo.  400;  Russell  v.  Post,  138  U.  S.  425,  11  Sup.  Ct.  353,  34  L.  Ed. 
1009. 

IT  Hanauer  v.  Doane,  12  Wall.  (U.  S.)  342,  20  L.  Ed.  439;  Tatum  v. 
Kellej-,  25  Ark.  209,  94  Am.  Dec.  717.  By  the  common  law,  sales 
to  an  alien  enemy  are  void.  Brandon  v.  Nesbitt.  G  Term  R.  23; 
Potts  V.  Bell.  8  Term  R.  548;  U.  S.  v.  Lapene,  17  Wall.  (U.  S.)  6U1, 
21  L.  Ed.  G93;   Bank  of  New  Orleans  v.  Mathews,  49  N.  Y.  12. 

18  Webster  v.  Munger,  8  Gray  (Mass.)  584;  Graves  v.  Johnson,  156 
Mass.  211,  30  N.  E.  818,  15  L.  R.  A.  834,  32  Am.  St.  Rep.  446;  Davis 
V.  Bronson,  6  Iowa,  410.  "When  a  sale  of  intoxicating  liquors  in 
another  state  has  just  so  much  greater  approximation  to  a  breach 
of  the  Massachusetts  law  as  is  implied  in  the  statement  that  it  is 
made  with  a  view  to  such  a  breach,  it  is  void.  Webster  v.  Munger, 
8  Gray  (Mass.)  584;  Orcutt  v.  Nelson,  1  Gray  (Mass.)  536,  541; 
Hul)boll  V.  Flint,  13  Gray  (Mass.)  277,  279;  Adams  v.  Coulliard,  102 
Mass.  1P.7.  172,  173.  *  *  *  if  the  sale  would  not  have  been  made 
but  for  the  seller's  desire  to  induce  an  unlawful  sale  in  Maine,  it 
would  be  an  unlawful  sale.  *  *  *  w'e  assume  that  the  sale 
would  have  taken  place  whatever  the  buyer  had  been  expected  to  do 
•with  the  goods.  *  *  *  The  question  is  whether  the  sale  is  sav- 
ed by  the  fact  that  the  intent  mentioned  was  not  the  controlling  in- 
ducement to  it.  *  *  *  If  the  sale  is  made  with  the  desire  to  help 
him  (the  buyer)  to  his  end,  although  primarily  made  for  money, 
the  seller  cannot  complain  if  the  illegal  consequence  is  attributed 
to  him.  If  the  buyer  knows  that  the  seller  while  aware  of  his 
Intent  is  indifferent  to  it,  or  disapproves  of  it,  it  may  be  doubtful 
whether  the  connection  is  sufhcient.  It  appears  to  us  not  unrea- 
Fonable  to  draw  the  line  as  was  drawn  in  Webster  v.  Munger,  8 
Gray  (Mass.)  584,  and  to  say  that  when  the  illegal  intent  of  the 
buyer  is  not  only  known  to  the  seller,  but  encouraged  by  the  sale, 
as  just  explained,  the  sale  is  void."  Graves  v.  Johnson,  supra,  per 
TTolmes.  J.  See,  also,  Wasserboehr  v.  Morgan,  168  Mass.  291,  47  N. 
K.  126. 


§  65)  8ALE8   PltOllIlJlTED    BY    STATUTE.  213 


SALES    PROHIBITED    BY    STATUTE. 

65.    AmonR   statutes    prohibitiuK    sales    the    follow^inf!;    are    the 
most  iiuportant: 

(a)  Statutes    rcf^ulatlng    the    conduct    of    trades    in    certain 

couiuiodities,  or  requiring  a  license  of  persons  en^nRcd 
in  certain  kinds  of  business,  and,  by  iniiiHcation,  pro- 
hibiting; sales  where  the  statutory  iirovisions  have  not 
been  complied  with. 

(b)  Statiitcs  prohibiting;  absolutely  or  conditionally  the  sale 

of  intoxicatinp;  liquors. 

(c)  Statutes    iirohibitiii^;    sales    on    Sunday. 

(d)  Statutes  prohibitiu};  w^agers.      This   subdivision  includes 

statutes  prohibiting  the  selling  of  goods  for  future  de- 
livery, w^here  the  parties  intend,  not  an  actual  deliv- 
ery, but  a  settlement  by  paying  the  difference  bctw^een 
the  market  and  the  contract  price. 

Where  contracts  arc  prohibited  by  statute,  the  prohibition  is 
sometimes  express  and  sometimes  implied,  and  in  cither  case  the 
agreement  cannot  be  enforced.  The  usual  way  by  which  con- 
tracts are  prohibited  by  implication  is  by  the  imposition  of  a 
penalty.  Some  cases  hold  that,  whenever  a  statute  imposes  a 
penalty  for  an  act  or  omission,  it  impliedly  prohibits  the 
same;  ^°  but,  by  the  weight  of  authority,  the  imposition  of  a 
penalty  is  only  prima  facie  evidence  of  the  intention  to  prohibit. 
The  intention  of  the  legislature  will  always  govern,  and  the 
court  will  look  to  the  language  and  subject-matter  of  the  act 
and  to  the  evil  which  it  seeks  to  prevent.^"  A  consideration 
which  receives  great  weight  is  whether  the  object  of  the  pen- 
alty is  protection  to  the  public  as  well  as  revenue ;  for,  if  the 
penalty  is  designed  to  further  the  interests  of  public  policy,  it 

10  Miller  v.  Post,  1  Allen  (Mas,s.)  4o4;  I'ray  v.  I'.mljaiik.  10  N. 
H.  377;  Hallett  v.  Novion,  14  Johns.  (N.  Y.)  27.*?;  Diirgln  v.  Dyer, 
08  Me.  14."5:  Bancroft  v.  Dumas.  21  Vt.  4.1(i;  Mitchell  v.  Smith,  1 
Bin.  (Pa.)  110.  2  Am.  Dec.  417;    Bacon  v.  Lee.  4  Iowa,  490. 

2  0  Cope  V.  Rowlands.  2  Mees.  &  W.  149;  Miller  v.  Amnion,  145  U. 
S.  421,  42G.  12  Sup.  Ct.  SS4.  36  L.  Ed.  7.'".9;  Harris  v.  Runnels.  12 
How.  OJ.  S.)  79.  St,  13  Iv.  Ed.  901;  Bowditch  v.  Insurance  Co..  141 
Mass.  292.  29.".,  4  N.  II  798,  ."►  Am.  Rep.  474;  Pansborn  v.  Westlake. 
36  Iowa.  54(;;  Niemeyer  v.  Wright,  75  Va.  239,  40  Am.  Rep.  720; 
Clark,  Cont.   (2d  Ed.)  2(30. 


214  ILLEGALITY.  (Ch.  6 

amounts  to  a  prohibition ;  ^^  but,  if  it  is  designed  solely  for 
revenue  purposes,  the  contract  is  not  necessarily  prohibited.^ - 
A  second  consideration,  which  sometimes  receives  weight,  is 
whether  the  penalty  is  recurrent  upon  every  breach  of  the  pro- 
visions of  the  statute,  for,  if  it  is  recurrent,  the  inference  is  that 
the  penalty  amounts  to  a  prohibition.^^ 

Statutes  Regulating  Trade. 

There  are  numerous  statutes  enacted  for  the  purpose  of  pro- 
tecting the  public  in  business  dealings,  which  generally  im- 
pose a  penalty  for  noncompliance  with  their  provisions,  and 
which  are  construed  as  prohibiting  sales  on  the  part  of  dealers 
who  have  failed  to  comply  with  them.  Among  these  statutes 
may  be  mentioned  statutes  requiring  dealers  to  have  their 
weights,  measures,  or  scales  approved  or  sealed ;  ^*  statutes  re- 
quiring goods  to  be  marked  in  a  particular  way,^^  or  to  be  in- 
spected,-® or  to  conform  to  a  certain  weight  or  to  certain  di- 
mensions,^^ or  to  be  officially  w^eighed  or  measured,^*  or  to  be 


21  Cope  V.  Rowlands,  2  Mees.  &  W.  149;  Cundell  v.  Dawson,  4  C. 
B.  370:  Griffith  v.  Wells,  3  Denio  (N.  Y.)  226;  Seidenbender  v. 
Charles.  4  Serg.  &  R.  (Pa.)  150;  Penn  v.  Bornman,  102  111.  523;  Bis- 
bee  V.  McAllen,  39  Minn.  143,  39  N.  W.  299;  Clark,  Oont.  (2d  Ed.) 
261. 

2  2  Brown  v.  Duncan,  10  Barn.  &  C.  93;  Larned  v.  Andrews,  106 
Mass.  435,  8  Am.  Rep.  346;  Corning  v.  Abbott,  54  N.  H.  409;  Aiken 
V.  Blaisdell,  41  Vt,  655;  Ruckman  v.  Bergholz.  37  N.  J.  Law,  437; 
Rahter  v.  Bank,  92  Pa.  393;  Mandlebaum  v.  Gregovich,  17  Nev,  87, 
28  Pac.  121,  45  Am.  Rep.  433. 

28  Ritchie  V.  Smith,  6  C.  B.  462;    Benj.  Sales,  §  538. 

24  Miller  v.  Post,  1  Allen  (Mass.)  434;  Bisbee  v.  McAllen.  39  Minn. 
143,  39  N.  W.  299;  Finch  v.  Barclay,  87  Ga.  393,  13  S.  B.  566.  See. 
generally,  as  to  statutes  regulating  a  trade  or  business,  Clark,  Cont. 
(2d  Ed.)  263. 

2  5  Forster  v.  Taylor.  5  Barn.  &  Adol.  887;  McConnell  v.  Kitchens, 
20  S.  O.  430,  47  Am.  Rep.  845. 

2«  Requiring  fertilizers  to  be  inspected  or  labeled.  McConnell  v. 
Kitchens,  20  S.  C.  430,  47  Am.  Rep.  845;  Conley  v.  Sims,  71  Ga.  161; 
Baker  v.  Burton  (C.  C.)  31  Fed.  401;  Williams  v.  Barfield  (C.  C.)  31 
Fed.  398;  Caniphell  v.  Segars,  81  Ala.  259,  1  South.  714.  But  see 
Niemeyor  v.  Wright,  75  Va.  2.39,  40  Am.  Rep.  720. 

27  Law  V.  Hodson,  11  East,  300;    Wheeler  v.  Russell,  17  Mass.  258. 

28  Pray  v.  Burbank,  10  N.  H.  377;  Libby  v.  Downey,  5  Allen 
(Mass.)  299. 


g  G5)  SALES  PUoniiuTKn  hy  statutk.  21." 

Sold  by  \vcI:L;ht  and  not  by  measure,  or  vice  versa ;  -°  and 
statutes  rc(iuiring  dealers  to  take  out  a  license.'"  The  efifcct  of 
noncompliance  by  the  seller  with  such  statutes  is  to  preclude 
him  from  recovering  the  price. 

Slatutcs  Regulating  Sale  of  Intoxicating  Liquor. 

Where  a  statute  prohibits  the  sale  of  licjuor  absolutely,  a  con- 
tract of  sale  is,  of  course,  invalid.  But,  whether  absolutely 
])ruhibitory  or  not,  such  statutes  are  construed  as  intended, 
not  merely  for  revenue,  but  to  diminish  the  evils  of  intemper- 
ance. Therefore,  where  the  statute  simply  imposes  a  penalty 
for  selling  without  license,  the  sale  is  void.^* 

Statutes  Prohibiting  Sunday  Sales. 

At  common  law,  sales,  like  other  contracts  entered  into  on 
Sunday,  are  valid. ^^  In  later  times,  however,  statutes  have 
been  passed  in  England,  and  in  most  of  the  states,  prohibiting 
certain  acts  on  Sunday,  and  whether  sales  are  included  in 
the  prohibition  depends  upon  the  terms  of  the  particular  act. 
Where  the  statute  prohibits  the  making  of  contracts,  sales  are, 
of  course,  included.  And  sales  are  included  where  the  prohibi- 
tion is  against  labor,  work,  and  business,  since  the  making  of 
contracts  is  secular  business;  ^'  but  they  are  not  included  if  the 


2»  Eaton  V.  Kesan,  114  Mass.  433. 

3  0  Cope  V.  Ifuwiands,  2  Moes.  &  W,  149;  Johnson  v.  ITnlincrs,  Wi 
Pa.  408.  40  Am.  Rep.  131;  Buckley  v.  Ilumason,  .50  Minn.  VJd,  52 
N.  W.  385,  IG  L.  It.  A.  423.  3G  Am.  St.  Kep.  (>i7. 

31  Crifljth  V.  Wells,  3  Denio  (N.  Y.)  226;  Aiken  v.  Blalsdell,  41 
Vt.  G.".;  Lewis  v.  Welch,  14  N.  H.  204;  Cobb  v.  Billings,  23  Me. 
470;  Melchoir  v.  McCarty,  31  Wis.  252,  11  Am.  Rep.  GOo;  O'Bryan 
V.  Fitzpatrick,  48  Ark.  487,  3  S.  W.  527;  Bach  v.  Smith,  2  Wash. 
T.  145.  3  Pac.  831.     And  see  Clark,  Cont.  (2d  PW.)  2(>5. 

3  2  Drnry  v.  Defontaine,  1  Taunt.  131;  Richardson  v.  Goddard,  23 
Mow.  rr.  S.)  20,  42,  IG  L.  Ed.  412;  Adams  v.  Gay,  19  Vt.  35S; 
Bloom  V.  Richards,  2  Ohio  St.  387;  Richmond  v.  Moore,  107  111. 
420,  47  Am.  Rep.  445;  Brown  v.  Browning,  15  R.  I.  42."^.  7  Atl.  403. 
2    Am.    St.    Rep.   008. 

s8  Pattee  v.  Greely.  13  Mete.  CSIass.)  284;  Northrnp  v.  Foot,  14 
Wend.  (N.  Y.)  240;  Towle  v.  Larrabee,  2G  Me.  4*U;  Varuey  v. 
French.  10  N.  H.  2r>3;  Nibert  v.  Baghurst,  47  N.  J.  Eq.  201.  20  Atl. 
252:  Troowert  v.  Dwker,  51  Wis.  4G.  8  N.  W.  2G.  37  Am.  Rop.  8i)8: 
iMirant  v.  Rhenor,  2G  Minn.  3G2,  4  N.  W.  GIO;  Clark,  Cont  (2U  Ed.) 
2G5. 


216  ILLEGALITY.  (Ch.  6 

prohibition  is  merely  against  labor.^*  Again,  if  the  prohibition 
is  confined  to  labor,  work,  or  business  of  a  man's  "ordinary 
calling,"  a  sale  not  in  the  exercise  of  such  calling  is  valid.^'' 
If  the  law  prohibits  exposure  of  merchandise  for  sale,  the 
prohibition  extends  only  to  public  sales. ^' 

Same — Ratification  of  Sunday  Sale. 

Whether  a  Sunday  sale  is  capable  of  ratification  is  a  ques- 
tion on  which  there  is  much  conflict  of  authority.  A  leading 
case  on  the  point  is  Williams  v.  Paul,^^  in  which  there  was  a 
subsequent  promise  to  pay  for  the  goods,  on  the  strength  of 
which  it  was  held  that  an  action  could  be  maintained ;  but  this 
decision  was  questioned  by  Parke,  B.,^^  on  the  ground  that  the 
contract  was  incapable  of  ratification,  and  that  the  property  in 
the  goods  having  passed  by  delivery,  the  promise  to  pay  for 
them  was  without  consideration.  If  it  is  correct  to  say  that 
the  property  passes  in  such  case,  this  criticism  appears  to  be  un- 
answerable; but  there  is  some  authority  to  the  effect  that  the 
property  does  not  pass,  and  that,  if  the  goods  have  not  been 
paid  for,  the  seller  can  maintain  replevin  or  trover,^''  in  which 
case  sufficient  consideration  for  the  new  promise  may  be  found. 
In  this  country  the  cases  are  in  direct  conflict,  some  holding 
that  a  Sunday  contract  can  be  ratified  ^^  and  others  holding  that 

3  4  Richmond  v.  Moore,  107  111.  429,  47  Am.  Rep.  445;  Birks  v. 
French,  21  Kan.  238.    Contra,  Reynolds  v.  Stevenson,  4  Ind.  019. 

35Drury  v.  Defontaine,  1  Taunt.  131;  Bloxsome  v.  Williams,  3 
Barn.  &  C.  232;  Scarf e  v.  Morgan,  4  Mees.  &  W.  270;  Allen  v. 
Gardiner,  7  R.  I.  22;  Hazard  v.  Day,  14  Allen  (Mass.)  487,  92  Am. 
Dec.  790;  Swann  v.  Swaun  (C.  C.)  21  Fed.  299;  Amis  v.  Kyle,  2 
Yerg.  (Tenn.)  31,  24  Am.  Dec.  4G3;  Sanders  v.  Johnson,  29  Ga.  526; 
Mills  V.  Williams,  16  S.  C.  593;  Clark,  Cont.  (2d  Ed.)  266.  But 
see  Fennell  v.  Ridler,  5  Barn.  &  C.  406;  Smith  v.  Sparrow,  4  Bing. 
84. 

3c  Boynton  v.  Page,  13  Wend.  (N.  Y.)  425;  Batsford  v.  Every,  44 
Barb.  (X.  Y.)  618;  Ward  v.  Yv^ard,  75  Minn.  209,  77  N.  W.  965.  See, 
also,  Hoklen  v.  O'Brien,  86  Minn.  297,  90  N.  W.  531;  State  v.  Weiss, 
97  Minn.  125.  lOo  N.  W.  1127;  Clark,  Cont.  (2d  Ed.)  267. 

87  0  Bing.  653. 

3  8  Simpson  v.  Nicholls,  3  Mees.  &  W.  244,  as  corrected  5  Mees. 
&  W.  702. 

3  0  Post,  p.  221. 

40  Adams  v.  Gay,  19  Vt.  360;  Flinn  v.  St.  John,  51  Vt.  334,  345; 
Sayles  v.  Wellraan,  10  R.  I.  405;  Banks  v.  Werts,  13  Ind.  203;  Tucker 


g  05)  SALES   PK01IllUir.il    15V    STATLTK.  2i7 

it  cannot.*^  So  also  the  cases  are  conflictiri}:;  on  the  question 
whether  an  action  can  be  maintained  when  there  is  a  subsequent 
promise  to  pay.*-  If  the  sale  is  made  on  Sunday,  but  the 
goods  are  not  delivered  until  a  week  day,  the  buyer  is  liable, 
not  on  the  ori<jinal  promise,  but  on  an  implied  promise  to 
pay  for  the  goods.* ^ 

Wagering   Contracts. 

At  common  law,  wagers  that  did  not  violate  any  rule  of  pub- 
lic decency  or  morality  or  any  recognized  principle  of  pul)lic 
policy  were  not  prohibited,**  although  in  many  of  the  states  of 
the  Union  wagering  contracts  on  matters  in  which  the  parties 
have  no  interest  have  been  held  contrary  to  public  policy  and 
unenforceable.*"  By  statute  to-day,  in  England,  and  in  most, 
if  not  all,  of  the  states,  contracts  by  way  of  wagering  and 
gaming  are  declared  void.  Therefore,  a  bet  in  the  form  of  a 
sale,  as  the  sale  of  a  horse  for  $50  if  H.  G.  is  elected  president, 
and  for  $500  if  U.  S.  G.  is  elected,  is  invalid.*" 

V.  West,  29  Ark.  SSO;  Campbell  v.  Young,  9  Bush  (Ky.)  240;  Owimi 
V.  Sillies.  Gl  Mo.  3S5;  Smith  v.  Case,  2  Or,  100;  Cook  v.  F«>rker, 
193  Pa.  4G1,  44  Atl.  5G0,  74  Am.  St.  Rep.  099;  Teuueut-Stribliiig 
Shoe  Co.  V.  Roper.  94  Fed.  739,  30  C.  0.  A.  455. 

■•iDay  V.  McAllister,  15  Gray  (Mass.)  433;  Tillock  v.  Webb,  50 
Me.  100;  Plaisted  v.  Palmer,  03  Me.  570;  Grant  v.  McGrath.  56 
Conn.  333,  15  Atl.  370;  Butler  v.  I.ee,  11  Ala.  S.S5.  4C>  Am.  Dec.  230; 
Vinz  V.  Beatty,  61  Wis.  645,  21  N.  W.  7S7;  Riddle  v.  Keller,  01  N. 
J.  Eq.  513,  48  Atl.  818;  Acme  Electrical  Illustrating:  &  Advertisinj; 
Co.  V.  Van  Derbcck,  127  Mich.  341,  86  N.  W.  7S0;  Clark,  Cont.  (2d 
Eld.)  2G9,  collecting  cases. 

*2  Harrison  v.  Colton,  31  Iowa,  10;  Melchoir  v.  MoCarty.  31 
Wis.  2.j2.  11  Am.  Rep.  OO.j.  See  Winchell  v.  Carey,  115  Mass.  ."00. 
15  Am.  Rep.  151.  Contra:  Boutelle  v.  Melendy,  19  N.  H.  190,  49  Am. 
Dec.  152;    Kountz  v.  Price.  40  Miss.  341.     Post,  p.  221. 

<3  Bradley  v.  Rea,  14  Allen  (Mass.)  20;  Id.,  103  Mass.  188.  4  Am. 
Rep.  524;  Foreman  v.  Ahl,  55  Pa.  325;  Hopkins  v.  Stefan,  77  Wis. 
45,  45  N.  W.  070;  Bollin  v.  Hooper,  127  Mich.  2S7.  80  N.  W.  795 
See.  also,  Flj-nn  v.  Columbus  Club.  21  R.  I.  534,  45  Atl.  551.  The 
delivery  must  bo  under  circumstances  showing  a  contract,  -\spell 
V.  Hosbeln,  98  Mich.  117,  57  N.  W.  27. 

♦  *  Anson,  Cont.  lOG ;  Benj.  Sales,  §  542;  Clark,  Cont.  (2d  Ed.)  270. 

<5  Irwin  V.  Williar,  110  U.  S.  499,  510.  4  Sup.  Ct.  IGO,  lOr,,  28  L. 
Ed.  225,  and  cases  cited;    Clark.  Cont.   (2d  Ed.)  270. 

■•«  Harper  v.  Crain.  3<;  Ohio  St.  338,  38  Am.  Rep.  589;  Bates  v. 
Clifford.  22  Minn.  .".2, 


218  ILLEGALITY.  (Cll.  6 

Same — Futures. 

The  principal  question  that  arises  in  the  law  of  sales  in  con- 
nection with  the  subject  of  wagers  is  whether  an  executory 
contract  for  the  sale  of  goods  is  not  a  device  for  gaming.  As 
has  been  stated/^  a  contract  for  the  sale  of  goods  to  be  deliv- 
ered at  a  future  day  is  valid,  even  though  the  seller  has  not 
the  goods  or  any  means  of  getting  them  except  that  of  buying 
them  in  the  market.  But  such  a  contract  is  valid  only  provided 
the  parties  really  intend  and  agree  that  the  goods  are  to  be 
delivered  by  the  seller,  and  that  the  price  is  to  be  paid  by  the 
buyer.  If  under  the  guise  of  such  a  contract,  the  real  intent  is 
merely  to  speculate  in  the  rise  and  fall  of  prices,  and  the  actual 
agreement  is  that  the  goods  are  not  to  be  delivered,  but  that 
one  party  is  to  pay  to  the  other  the  difference  between  the 
contract  price  and  the  market  price  of  the  goods,  at  the  date 
fixed  for  the  performance  of  the  contract,  then  the  whole  con- 
tract constitutes  nothing  more  than  a  wager,  and  is  null  and 
void.*'  But  the  contract  does  not  become  a  \vagering  con- 
tract simply  because  one  or  both  of  the  parties  intend,  when 
the  time  for  performance  arrives,  not  to  require  performance, 
but  to  substitute  a  settlement  by  payment  of  the  difference  be- 
tween the  contract  price  and  the  market  price,  so  long  as  it 

*T  Ante,  p.  49. 

*8  GrizcAvood  v.  Blane,  11  C.  B.  526;  Irwin  v.  Williar,  110  U.  S. 
409,  4  Sup.  Ot.  160,  28  L.  Ed.  225;  White  v.  Barber,  123  U.  S.  392, 
8  Sup.  Ct.  221.  31  L.  Ed.  243;  Harvey  v.  Merrill,  150  Mass.  1,  22 
N.  E.  49,  5  L.  R.  A.  200,  15  Am.  St.  Rep.  159;  Barnes  v.  Smith,  159 
Mass.  344,  34  N.  E.  403;  Hatch  v.  Douglas,  48  Conn.  116,  40  Am. 
Rep.  154;  Flagg  v.  Gilpin,  17  R.  I.  10,  19  Atl.  lOSi;  Kingsbury  v. 
Kirwan,  77  N.  Y.  612;  Brua's  Appeal,  55  Pa.  294 ;  Burt  v.  Myer,  71 
Md.  4G7,  18  Atl.  796;  Lawton  v.  Blitch,  83  Ga.  663,  10  S.  E.  353; 
McGrew  v.  Produce  E2xchange,  85  Tenn.  572,  4  S.  W.  38,  4  Am.  St. 
Rep.  771;  Kabn  v.  Walton,  46  Ohio  St.  195,  20  N.  E.  203;  Cothran 
V.  Ellis,  125  111.  496,  16  N.  E.  646;  Whitesides  v.  Hunt.  97  Ind. 
191.  49  Am.  Rep.  441;  Gregory  v.  Wendell,  39  Mich.  337,  33  Am. 
Rep.  390:  Cockrell  v.  Thompson,  85  Mo.  510;  Mohr  v.  Miesen,  47 
Minn.  228.  49  N.  W.  862;  Tomblin  v.  Callen,  69  Iowa,  229,  28  N. 
W.  573;  Morrlssey  v.  Broomal,  37  Neb.  766,  56  N.  W.  383;  Dows  v. 
Glaspel,  4  N.  D.  251,  60  N.  W.  60;  Wagner  v.  Hildebrand,  187  Pa. 
136.  41  Atl.  34;  Johnston  v.  Miller,  67  Ark.  172,  53  S.  W.  1052; 
Ponder  v.  Cotton  Co.,  100  Fed.  373,  40  0.  C.  A.  416;  Morris  v.  Tele- 
graph Co.,  94  Mo.  423,  47  Atl.  920;  Atwater  v.  Manville,  106  Wis. 
64,  81  X.  W.  98.-.;    Clark,  Cont.  (2d  Ed.)  278. 


§g  66-68)  f:FFK,CT  of  ii.i.kcjai.hy.  L'1;> 

is  agreed  that  the  contract  shall  he  performed  according  to  its 
terms  if  either  party  requires  it.*'  If  cither  party  intends  an  ac- 
tual sale,  he  may  enforce  the  contract,  though  the  other  intends 
a  wager. ""  Such  intention  is  immaterial,  except  so  far  as  it  is 
made  part  of  the  contract,  although  it  need  not  be  made  ex- 
pressly a  part  of  the  contract. 


EFFECT   OF  ILLEGALITY. 

GG.  In  no  case  can  an  action  be  maintained  to  enforce  au  il- 
legal agreement. 

07.  Where  an  agreement  has  been  executed  in  whole  or  in 
part  by  the  payment  of  money  or  the  transfer  of  other 
property,  the  court  ivill  not  Renerally  lend  its  aid  to 
recover  it  back.  The  rule  is  that  the  court  xrill  not 
lend  its  aid  to  a  party  urho,  as  the  ground  of  his  claim, 
must  disclose  an  illcK^l  trausaction.  This  rule  is 
subject  to  exceptions  as  follovrs,  ixrhere  the  action  is 
brought,  not  to  enforce  the  agreement,  but  in  disaf- 
firmance of  it: 

EXCEPTIONS — (a)  In  some  cases  a  locus  poenitentise  re- 
mains, and,  while  the  agreement  is  unperformed,  mon- 
ey or  goods  delivered  in  furtherance  of  it  are  allow- 
ed to  be  recovered. 

Cb)  Where  the  parties  are  not  in  pari  delicto,  the  one  w^ho 
is  less  guilty    may   recover   TPhat   he    has    parted    w^ith. 

G8.  If  the  agreement  is  for  the  sale  for  an  entire  price  of 
various  articles,  some  of  w^hich  may  and  others  of 
'which  may  not  be  law^fully  sold,  the  \phole  agreement 
is  void;  but,  if  a  separate  price  is  named  for  each  ar- 
ticle, so  that  the  consideration  is  apportionable,  the 
agreement  may  be  enforced  so  far  as  it  relates  to  the 
articles  law^fully  sold. 

The  courts  will  not  lend  their  aid  to  the  enforcement  of  an 
illegal  agreement.  "The  objection,"  said  Lord  Mansfield,  "that 
a  contract  is  illegal,  as  between  plaintiff  and  defendant,  sounds 
at  all  times  very  ill  in  the  mouth  of  the  defendant.     It  is  not 

♦  0  Harvey  v.  Merrill,  150  Mass.  1,  22  N.  E.  49.  5  I..  R.  A.  LHX).  If) 
Am.  St.  Rep.  1.".9.  per  Field,  J.;    Clark.  Com.  (2a  K.l.)  27!l. 

50  rixloy  V.  Boyuton,  79  111.  3."»1;  Wbitesulos  v.  Hunt.  97  Ind.  191. 
49  Am.  Rep.  441;  Gregory  v.  Wendell,  39  Mich.  337,  33  Am.  Rep. 
390;    Bangs  v.  Ilornirk  (0.  C.)  30  Fed.  97. 


220  ILLEGALITY.  (Ch.  6 

for  his  sake,  however,  that  the  objection  is  ever  allowed;  but 
it  is  founded  in  general  principles  of  policy,  which  the  defend- 
ant has  the  advantage  of,  contrary  to  the  real  justice  as  be- 
tween him  and  the  plaintiff — by  accident,  if  I  may  so  say.  The 
principle  of  public  policy  is  this :  'Ex  dolo  malo  non  oritur 
actio.'  No  court  will  lend  its  aid  to  a  man  who  founds  his 
cause  of  action  upon  an  immoral  or  an  illegal  act.  If,  from 
the  plaintiff's  own  stating  or  otherwise,  the  cause  of  action  ap- 
pears to  arise  ex  turpi  causa,  or  the  transgression  of  a  positive 
law  of  this  country,  there  the  court  says  he  has  no  right  to  be 
assisted.  It  is  upon  that  ground  the  courts  go;  not  for  the 
sake  of  the  defendant,  but  because  they  will  not  lend  their  aid 
to  such  a  plaintiff.  So,  if  the  plaintiff  and  defendant  were  to 
change  sides,  and  the  defendant  was  to  bring  his  action  against 
the  plaintiff,  the  latter  would  then  have  the  advantage  of  it; 
for,  where  both  are  equally  in  fault,  'potior  est  conditio  de- 
fendentis.'  "  " 

Neither  party  can  maintain  an  action  on  the  illegal  agree- 
ment, neither  the  seller  for  the  price,  nor  the  buyer  for  the 
goods,  nor  either  to  recover  damages  for  its  breach.^ ^  Neither 
can  the  seller,  although  the  goods  are  delivered,  recover  on  an 
implied  promise,  since  there  is  no  ground  on  which  a  promise 
can  be  implied. ^^  The  agreement  is  void  for  all  purposes,  and 
neither  party  can  maintain  an  action  on  a  warranty  or  for 
fraudulent  representations  inducing  the  agreement.^*  But 
though  the  agreement  is  void,  if  it  has  been  executed  by  the 

61  Holman  v.  Johnson,  1  Cowp.  341, 

cillolman  v.  Johnson,  1  Cowp.  341,  per  Lord  Mansfield;  Foster 
V,  Thurston,  11  Cush.  (Mass.)  322;  Roby  v.  West,  4  N.  H.  2S5,  17 
Am.  Dec.  423,  Materne  v.  Ilovwitz,  50  N.  Y.  Super.  Ct.  41;  Id., 
101  N.  Y.  400.  ,-)  N.  R  331;  Penn  v.  Bornman,  102  111.  523;  Randon 
V.  Toby,  11  How.  (TJ.  S.)  493.  520,  13  L.  Ed.  7S4;  Miller  v.  Amnion, 
145  U,  S,  421,  12  Sup.  Ct,  8&4,  36  L.  Ed.  759;  Church  v.  Proctor, 
GG  Fed.  240,  13  C,  C.  A.  426;  Storz  v.  Finklestein,  46  Neb.  577,  65 
N.  W,  195,  30  L,  R,  A.  644;  Ullman  v.  Association,  167  Mo.  273,  66 
S.  W,  949,  56  L.  R.  A,  606. 

&3  Ladd  V,  Rogers,  11  Allen  (Mass,)  209;  Foreman  v,  Ahl,  55  Pa. 
325;  O'Donnell  v,  Sweeney,  5  Ala,  467,  39  Am.  Dec,  336;  Pike  v. 
King,  16  Iowa,  40. 

5*  Ilulot  V,  Stratton,  5  Cush.  (Mass.)  539;  Robeson  v.  French,  12 
Mote.  (Mass.)  24,  45  Am,  Dec.  236;    Northrup  v.  Foot,  14  Wend.  (N. 


§§  6G-CS)  EFFK(  T    OF    ILLEGALITY.  221 

delivery  of  the  goods  and  the  payment  of  tlie  price,  tlie  CDurt 
will  not,  as  a  rule,  aid  either  party  in  disaftirniing  it.  The 
seller  cannot  recover  his  goods,  nor  the  huyer  his  money."' 
In  this  way  possession  acquired  under  illegal  sales  will  often 
avail  the  buyer  as  a  sufficient  title.  Neither  party  is  allowed  to 
impeach  its  validity  by  asserting  the  invalidity  of  his  own  act, 
and  the  transaction  takes  effect  from  the  inability  of  either 
l>arty  to  impeach  it.''°  The  rule  applies:  "In  pari  delicto  potior 
est  conditio  defendentis." 

It  is  not  clear,  however,  that  if  the  goods  have  been  delivered, 
but  not  paid  for,  the  seller  cannot  maintain  an  action  founded 
on  his  right  of  property  of  which  he  has  never  been  divested, 
though  the  authorities  are  conflicting.  Thus,  it  has  been  held  in 
the  case  of  a  Sunday  sale  that  the  seller  can  under  such  cir- 
cumstances maintain  replevin,  since  he  can  make  out  a  case 
founded  on  property  and  prior  right  of  possession  without  re- 
ferring to  the  void  contract, ^^  and  it  has  also  been  intimated 
that  he  could  sue  for  the  conversion ;  °*  in  which  case  it  seems 
that  a  sufficient  consideration  for  a  new  promise  to  pay  may 
be  found  in  the  consent  of  the  seller  to  the  transfer  of  the 
property  at  the  time  of  such  promise — the  liability  of  the  prom- 

Y.)  249;  Plaisted  v.  Palmer,  63  Me.  576;  Flnlcy  v.  Quirk.  9  Minn. 
194  (Gil.  179).  86  Am.  Dec.  93;  Gundorson  v.  Richardson.  HO  Iowa. 
5G.  8  N.  W.  68:^.  41  Am.  Rep.  81:    Smith  v.  Bean.  1.")  N.  H.  r»77.  578. 

05  Myers  v.  .Moinrath.  101  Mass.  3(JG,  3  Am.  Rep.  3(^S;  Morton 
V.  Bnllinton.  105  Mass.  399;  Greene  v.  Godfrey.  44  Me.  2.");  Chest- 
nut V.  Ilarliaucrh,  78  Pa.  473;  Ellis  v.  Hammond.  57  Ga.  179:  Block 
V.  McMurry.  IV)  Miss.  217,  31  Am.  Rep.  :]'>7:  Kinney  v.  McDermot, 
55  Iowa.  674.  8  N.  W.  656,  39  Am.  Rep-  191;  Moore  v.  Kendall.  2 
Pin.  (Wis.)  99.  .52  Am.  Dec.  145;  Singer  Mfg.  Co.  v.  Draper,  103 
Tenn.  262.  52  S.  W.  879. 

no  Myers  v.  Meinrath.  101  Mass.  366.  3  Am.  Rep.  .368,  per  Wells.  J. 

67  Tucker  v.  Mowrey.  12  Mich.  378;  Winfield  v.  Dodge,  45  Mich. 
3.55,  7  N.  W.  90<i,  40  Am.  Rep,  476.  See.  also.  Magee  v.  Scott,  9 
Cush.  (Ma.ss.)  148,  55  Am.  Dec.  49.  Contra.  Smith  v.  Bean.  15  N. 
H.  577.  578;  Kinney  v.  McDermot,  55  Iowa.  r>74.  8  N.  W.  656,  39 
Am.   Rep.   191. 

B8  Ladd  V.  Rogers.  11  .Mien  (Mass.)  209.  See.  also,  Myers  v,  Mein- 
rath. 101  Mass,  36<;.  .3(»,  3  Am.  Rep.  3(;S;  Hall  v.  Corcoran.  107 
Mass.  251.  9  Am.  Rep.  30;  Oanson  v,  CJoss,  107  JIass,  439,  441,  I) 
Am,   Rep.  45. 


222  ILLEGALITY.  (Ch.  6 

isor  resting,  however,  upon  a  new  contract,  and  not  upon  a  rat- 
ification of  the  original  contract.^^ 

Disaffirmance  before  Execution  of  Illegal  Purpose. 

It  is  a  general  rule  that  where  money  has  been  paid  upon  an 
agreement  whose  object,  although  illegal,  has  not  been  in 
other  respects  carried  out  by  performance,  the  party  who  has 
paid  the  nioney  may  disaffirm  the  contract,  and  recover  the 
money  in  an  action  for  money  had  and  received.^*'  Thus,  where 
a  corporation  passed  a  resolution  increasing  its  capital  stock  in 
violation  of  the  law,  and  the  plaintiff  agreed  to  take  certain 
shares  of  the  new  stock  when  issued,  and  paid  an  installment 
thereon,  but  the  stock  was  never  actually  increased,  nor  were 
certificates  issued,  the  court  held  that,  conceding  the  illegality 
of  the  contract,  the  plaintiflf  was  entitled  to  recover  the  money 
paid  by  him  in  part  performance,  the  defendant  not  having  per- 
formed any  part  of  the  agreement,  and  both  parties  having 
abandoned  the  illegal  agreement  before  it  was  consummated.®^ 
The  rule  was  stated  in  a  leading  English  case  ®^  as  follows: 
"If  money  is  paid,  or  goods  delivered,  for  an  illegal  purpose, 

5  8  Winfield  v.  Dodge,  45  Mich.  355,  7  N.  W.  906,  40  Am.  Rep.  476; 
Haacke  v.  Literary  Club,  76  Md.  429,  25  Atl.  422;  Brewster  v.  Ban- 
ta,  66  N.  J.  Law,  367,  49  Atl.  718.  An  action  may  be  maintained 
on  a  new  promise.  Williams  v.  Paul,  6  Bing.  653;  Harrison  v. 
Colton,  31  lowp.,  16;  Melchoir  v.  McCarty,  31  Wis.  252,  11  Am.  Rep. 
W.o.  See  Winchell  v.  Carey.  11.'5  Mass.  .560,  15  Am.  Rep.  151.  Con- 
tra: Boutelle  v.  Melendy,  19  N.  H.  196,  49  Am.  Dec.  152;  Kountz 
V.  Price,  40  Miss.  341. 

CO  Taylor  v.  Bowers,  1  Q.  B.  Div.  291;  Barclay  v.  Pearson  [1893] 
2  Ch.  154;  Congress  &  Empire  Spring  Oo,  v.  Knowlton,  103  U.  S. 
49,  20  L.  Ed.  347;  White  v.  Bank,  22  Pick.  (Mass.)  181,  189;  Tyler 
V.  Carlisle,  79  Me.  210,  9  Atl.  356,  1  Am.  St.  Rep.  301;  Clarke  v. 
Brown,  77  Ga.  006,  4  Am.  St.  Rep.  98;  Peters  v.  Grim,  149  Pa.  163, 
24  Atl.  192,  34  Am.  St.  Rep.  599;  Souhegan  Nat.  Bank  v.  Wal- 
lace, 61  N.  H.  24;  Adams  Exp.  Oo.  v.  Reno,  48  Mo.  264;  Wasser- 
man  v.  Sloss,  117  Cal.  425,  49  Pac.  566,  38  L.  R.  A.  176,  59  Am.  St 
Rep.  209;  Stansfleld  v.  Kunz,  62  Kan.  797,  64  Pac.  614.  Cf.  Ullman 
V.  Association,  167  Mo.  273,  66  S.  W.  949,  56  L.  R.  A.  600;  Kearley 
V.  Thompson,  24  Q.  B.  Div.  742,  746.  Contra:  Knowlton  v.  Spring 
Co.,  57  N.  Y.  51S,  Dwight,  C,  dissenting.  Benj.  Sales,  §  503a; 
Clark,  Cont.  (2d  Ed.)  338. 

«i  Congress  &  Empire  Spring  Co.  v.  Knowlton,  103  U.  S.  49,  26 
L.  Ed.  347. 

8  2  Taylor  v.  Bowers,  1  Q.  B.  Div.  291,  per  Mellish,  L.  J. 


§^  66-08)  EFFECT  OF  ilm-.cai.h  Y.  223 

the  person  who  had  so  paid  the  money  or  delivered  the  goods 
may  recover  them  back  before  the  illegal  purpose  is  carried 
out." 

Plaintiff  Xot  In  Pari  Delicto. 

I  f  the  party  asking  to  be  relieved  from  an  illegal  agreement 
was  not  in  pari  delicto  with  the  other  party,  the  court  may 
relieve  him.  "Where  the  jxirties  to  a  contract  against  public 
policy,  or  illegal,  are  not  in  pari  delicto  (and  they  are  not  al- 
ways so),  and  where  public  policy  is  considered  as  advanced  by 
allowing  either,  or  at  least  the  more  excusable  of  the  two,  to 
sue  for  relief  against  the  transgression,  relief  is  given  to 
him."  ®'  This  exception  applies  where  the  party  seeking  re- 
lief was  induced  to  enter  into  the  agreement  by  fraud,  undue 
influence,  or  duress,"*  or  where  the  illegality  is  created  by  stat- 
ute, and  the  party  seeking  relief  is  one  of  the  class  of  persons 
whom  the  statute  was  intended  to  protect."' 

Separable  Contract. 

As  a  general  rule  governing  all  contracts,  if  any  part  of  the 
consideration  is  illegal,  the  whole  agreement  is  void.""  This 
rule  applies  to  sales,  and,  where  such  illegality  exists,  the 
seller  cannot  recover  the  price."^  But  if  the  contract  is  sep- 
arable, so  that  it  is  clear  that  the  parties  intend  it  to  be  carried 
into  effect  piecemeal,  the  illegality  of  one  part  will  not  pre- 
vent the  legal  part  from  being  enforced."^     Thus,  when  each 

«3  Reynell  v.  Sprye,  1  DoGex,  M.  &  G.  OGO.  See  Clark,  Coat.  (20 
Ed.)  340. 

6*  Sniitb  V.  Cuff,  G  Maule.  &  S.  100,  105;  AtkiiLSou  v.  Denby,  6 
Hurl.  &  N.  778,  7  Hurl.  »t  N.  934;  Block  v.  MLMurry,  50  Miss.  217. 
:n  Am.  Rep.  357;  Davidson  v.  Carter.  55  Iowa,  117,  7  N.  W.  400; 
Bell  V.  Campbell.  123  Mo.  1,  25  S.  W.  359.  45  Am.  St.  Rep.  505; 
Woodbam   v.  Allen,   130  Cal.   194,   02  Pac.  39S. 

«8  Browning  v.  Morris.  2  Cowp.  790;  Bowditch  v.  Insurance  Co.. 
141  Mass.  21)2^  4  N.  E.  79S,  55  Am.  Rep.  474;  Masou  v.  MoLeod,  57 
Kan.  105.  45  Pac.  70,  41  U  11.  A.  548.  57  Am.  St.  Rep.  327;  Clark. 
Cont.  (2d  Ed.)  341. 

80  Waite  V.  Jones.  1  Bing.  N.  C.  050;  Jones  v.  Waite.  5  Binp.  N. 
C.  341;  Trist  v.  Child,  21  Wall.  (U.  S.)  441,  22  L.  FA.  02:5;  Clark. 
Oont.   (2d  Ed.)  321. 

«T  Holt  V.  O'Brien,  15  Gray  (Mass.)  311;  Woodruff  v.  Ilinuian.  11 
Vt.  .^.92.  34  Am.  Dec.  712;  Lain?  v.  McCall.  50  Vt.  (r>7;  Filsoii  v. 
Himes.  5  Pa.  452.  47  Am.  Dec.  422;    Ladd  v.  Dillingham,  34  Me.  316. 

08  Odessa  Tramways  Co.  v.  Mendel.  8  Ch.  Dlv,  235. 


224  ILLEGALITY.  (Ch.  G 

article  is  sold  for  a  separate  price,  the  price  of  those  articles 
which  it  was  lawful  to  sell  may  be  recovered.*'''  If,  however, 
a  note  is  given  for  the  price  of  all  the  articles,  there  can  be  no 
recovery  upon  it,  since  the  note  is  based  in  part  upon  an  illegal 
consideration.""  But  if  more  than  one  note  is  given,  and  the 
legal  items  equal  the  amount  of  one  of  the  notes,  a  recovery 
can  be  had  upon  it,  because  the  plaintiff  has  the  right  to  ap- 
propriate the  other  note  to  the  illegal  items. '^^ 

The  rule  that  the  illegality  does  not  avoid  the  entire  contract 
if  it  is  divisible  applies  whether  the  illegality  exists  by  stat- 
ute or  by  common  law,'^-  although  it  was  formerly  held  that 
it  did  not  apply  where  the  illegality  was  created  by  statute, 
which  it  was  said  "is  like  a  tyrant — where  he  comes,  he  makes 
all  void." 

CONFLICT    OF   LAWS. 

69.    The  legality   of   a   contract   of   sale   is   determined   by  the 
la\(r  in  force  xehere  the  sale  is  executed. 

As  a  rule,  the  validity  of  a  contract  is  to  be  determined  by 
the  law  of  the  place  where  it  is  made ;  but,  if  it  is  to  be  per- 
formed in  some  other  place,  its  validity  is  as  a  rule  to  be  de- 
termined by  the  law  of  that  place.'^^    If  a  sale  is  valid  where 

6  0  Boyd  V.  Eaton,  44  Me.  51,  69  Ani.  Dec.  83;  Carleton  v.  "Woods. 
28  N.  H.  290;  Walker  v.  Lovell,  Id.  138,  61  Am.  Dec.  605;  Barrett 
V.  Delano  (Me.)  14  AtL  288;  Chase  v.  Burkholder,  18  Pa.  48;  Clark, 
Cont.  (2d  Ed.)  324.  See,  also,  Shaw  v.  Carpenter,  54  Vt.  155,  41 
Am.  Rep.  837. 

ToDeering  v.  Chapman,  22  Me.  488,  39  Am,  Dec.  592;  Cobum  v. 
Odell,  30  N.  H.  540;  Kidder  v.  Blake,  45  N.  H.  530;  Allen  v.  Pearce, 
M  Ga.  606,  10  S.  E.  1015;  Gotten  v.  McKeuzie,  57  Miss.  418;  Widoe 
V.  Webb,  20  Ohio  St.  431,  5  Am.  Rep.  664;  Braitch  v.  Gueliok,  37 
Iowa,  212;  Cakes  v.  Merrifield,  93  Me,  297,  45  Atl.  31;  Wadsworth 
V.  Dunnam,  117  Ala.  661,  23  South.  699.  Gf.  Shaw  v.  Carpenter, 
54  Vt.  155,  41  Am.  Rep.  837.  See,  also,  Shaw  v.  Carpenter,  54  Vt. 
1.j5,  41  Am.  Rep.  837. 

7iCrookshank  v.  Rose,  5  Car.  &  P.  19;  Warren  v.  Chapman,  105 
Mass.  87.    See,  also,  Ilynds  v.  Hays,  25  Ind.  31. 

7  2  Pickering  v.  Railway  Co.,  Ji.  R.  3  C.  P.  250;  U.  S.  v.  Bradley, 
10  Pet.  (U.  S.)  343,  9  L.  Ed.  448;  Rand  v.  Mather,  11  Cush.  (Mass.) 
1.  7,  59  Am.  Dec.  131;  Anson,  Cont.  (4th  Ed.)  189;  Clark,  Cont. 
(2d  Ed.)  322. 

7  3  Clark,  Cont.  (2d  Ed.)  342. 


v^  69)  CONTLICT   OF    LAWS.  225 

it  is  made,  it  will  be  enforced  even  in  a  state  where  it  could  ii<>t 
he  lawfully  niadc.^^  BtU.  if  the  sale  woidd  he  invalid  in  the 
state  where  it  is  attempted  to  he  made — that  is,  where  the 
property  would  pass — it  will  not  he  enforced  there,"'  or  in  a 
jurisdiction  where  such  a  sale  would  be  valid/*  And  the  com- 
ity which  induces  a  state  to  enforce  a  forcipfn  contract  docs 
not  extend  to  the  enforcement  of  a  contract  entered  into  with 
the  desijT^n  of  evadinj^  its  laws.  Accordin.tjly,  a  sale  of  intox- 
icating liquors  or  other  p;oods,  executed  with  the  mutual  de- 
sign of  reselling  in  violation  of  the  laws  of  another  state,  will 
not  be  enforced  in  the  state  whose  laws  are  sought  to  be 
violated,^'  or  even  in  the  state  where  the  sale  is  made.'" 

The  validity  of  a  sale  is  determined  by  the  law  in  force  at 
the  time  of  its  execution,  and  a  subsequent  change  in  the  law 
will  not  validate  an  invalid  sale.'" 

■  Mlri'tMiwood  V.  C^u-tis,  6  Mass.  .3.''»8,  4  Am.  Doc.  14."»;  Orcutt 
V.  Nelson,  1  Gray  (Mass.)  53G;  Torrey  v.  Oirliss.  S,*?  Mo.  3,33; 
name  v.  Klint.  CA  Vt.  .".33,  24  Atl.  lO.")!;  Braunn  v.  Keally.  140  Pa. 
."i1f>.  23  Atl.  3SU.  23  Am.  St.  Hop.  811;  Wajinor  v.  Breed,  2t>  Nel*. 
720.  4€y  N.  W.  280;  Uvnoh  v.  Scott,  67  N.  H.  '^Si),  30  Atl.  420;  Miller 
HrewliiK  Co.  v.  Do  France,  IK)  Iowa.  3'Vo,  .")7  N.  W.  0.'!);  Westheimer 
V.  Weisnian,  fiO  Kan.  7."3,  ,"  Pac.  0(>1>. 

TO  Wasserboehr  v.  Bonlier,  84  Me.  lOo,  24  Atl.  808,  .30  Am.  St. 
Hep.  :!44;  (;ipps  Brewing  Co.  v.  De  France.  91  Iowa,  108.  ."iS  N.  W. 
1087,  28  L.  II.  A.  380,  51  Am.  St.  Kep.  320;  .Tuliiis  Winkolmeyer 
BrewiiiiT  Ass'n  v.  Nipp,  0  Kan.  .\pp.  730.  ."".O  Pac.  O'li. 

Tn  TIioo.  Ilamm  Browinp  Co.  v.  Youn;;,  70  Minn.  240.  70  N.  W.  111. 

7T  Waymell  v.  Reed.  5  Term  R.  .500;  Webster  v.  Munger,  8  Cray 
(Mass.)  .'84;  Oaylord  v.  Sora^'on,  32  Vt.  110,  70  Am.  Dec.  l.')4:  Fish- 
er V.  I>ord,  03  N.  H.  514,  3  Atl.  927;  Davis  v.  Bronson,  G  Iowa,  410. 
.Vnd  see  cases  cited  ante,  p.  211,  notes  13-1.5. 

Mere  knowledge  of  tlie  bnyer's  intention  to  resell  in  violation  of 
the  laws  of  another  state  is  not  enough.  Hill  v.  Si»ear.  .50  N.  H. 
2.53.  9  Am.  Rei>.  2u.5:  Webber  v.  Donnelly.  33  ^lich.  409;  Samuel 
Bowman  Distilling  Co.  v.  Nutt,  .34  Kan.  724.  10  Pac.  1(13;  ante,  p. 
211. 

^sOraves  v.  .Tohnson.  1.50  Mass.  211.  30  X.  E.  818.  15  L.  R.  A. 
8.34,  32  Am.  St.  Rep.  440;  Wasserboehr  v.  Mcirgan.  108  Mass.  201. 
47  N.  R  120.  And  see  Bollinger  v.  Wilsitn,  7t;  Minn.  202,  20t;.  79' 
N.  W.  109,  77  Am.  St.  Rep.  tVlG:    ante,  p.  212. 

•  »  Roby  V.  West,  4  N.  II.  28.5.  17  Am.  Dec.  423;   Banchor  v.   Maii- 
sel.  47  Me.  58;    Bailey  v.  Mogg.  4  Denio  (N.  Y.)  00;    ITandy  v.  Pul)- 
H.'shlng  Co.,  41  Minn.  188.  42  N.  W.  872,  4  L.  R.  A.  4tu;.  ic  Am.  ^t. 
Rep.  G95;    Clark,  Cont.  (2d  Ed.)  34G. 
TiFF.S.\i.Es(2n  Ei).)— 15 


226  CONDITIONS  AND   WARRANTIES.  (Ch.  T 

CHAPTER  VH. 

C5ONDITI0NS    AND    WARRANTIES. 

70-72.  In   General. 

73-75.  Warranties. 

76.  Implied   Warranty  of  Title. 

77.  Implied  Warranty  in  Sale  by  Description. 

78.  Implied  Warranties   of    Quality. 

79.  Implied  Warranties  in  Sale  by  Sample. 

IN   GENERAL. 

70.  PERFORMANCE  OF   CONDITIONS.      -Wliere   tlie  obliga- 

tion of  eitlier  party  to  a  contract  to  sell  or  a  sale  is 
snbject  to  any  condition  xrhicli  is  not  performed,  sncli 
party  may  refuse  to  proceed  i;ritli  the  contract  or  sale, 
or  lie  may  waive  performance  of  the  condition.  If  the 
other  party  has  promised  that  the  condition  should 
happen  or  be  performed,  such  first  mentioned  party 
may  also  treat  the  nonperformance  of  the  condition 
as  a  breach  of  'warranty.^ 

71.  CONDITIONS  AND  W^ARRANTIES.      Broadly  speaking, 

any  promise  by  the  seller  xirith  reference  to  the  goods 
which  are  the  subject  of  a  contract  of  sale  is  termed  a 
"warranty."  In  a  narrow^er  sense,  the  term  "x^ar- 
ranty"  is  confined  to  such  a  promise  w^hen  it  is  col- 
lateral to  the  main  purpose  of  the  contract  and  is  in- 
tended by  the  parties  to  be  such  that  its  breach  shall 
give  rise  to  a  claim  for  damages,  but  not  to  a  right 
to  reject  the  goods  and  treat  the  contract  as  repudiat- 
ed. A  promise  with  reference  to  the  goods,  if  it  is 
intended  to  be  such  that  its  performance  by  the  seller 
shall  be  a  condition  of  the  obligation  of  the  buyer  to 
perform  his  promise  to  accept  and  pay  for  the  goods, 
is  often  itself  termed  a  "condition." 

72.  FULFILLMENT  OF  "WARRANTY,  "WHEN  A  CONDITION. 

■Where  the  property  in  the  goods  has  not  passed,  the 
buyer  may  treat  the  fulfillment  by  the  seller  of  his  ob- 
ligation to    furnish    goods    as    described   and   as   \Far- 

1  Sales  Act,  §  11  (1). 


§j^  7U-72)  IN    GKNKUAL.  IIIIT 

rnuted  expressly  or  by  iiuiilirntion  in  the  coiitrart  to 
sell  RS  a  ronditioii  of  the  obligation  of  tbc  bnyer  to 
accept  anil   pay   for  the   goods. - 

F'crfonnancc   of  Conditions. 

After  a  contract  of  sale  has  been  entered  into,  it  is  the  duty 
of  the  seller  to  deliver  the  gocnls  and  of  the  buyer  to  accept 
and  pay  for  them  in  accordance  with  the  terms  of  the  con- 
tract.^ A  contract  to  sell  or  a  sale  may.  however,  be  absolute 
or  conditional.*  If  the  obligation  of  either  party  is  subject 
to  any  condition,  the  condition  must,  of  course,  be  performed, 
unless  its  performance  be  waived,  before  the  other  party  can 
enforce  such  obligation;  and  if  the  contract  contains  an} 
promise  the  performance  of  which  is  a  condition  precedent  to 
the  obligation  of  the  other  party,  such  promise  must  likewise  be 
performed,  unless  its  performance  be  waived.  The  subject  of 
delivery,  acceptance,  and  payment  in  performance  of  the  con- 
tract, as  well  as  of  waiver  and  excuses  for  nonperformance,  will 
be  considered  later.'^ 

Dependent  and  Independent  Promises. 

The  promises  of  the  parties  to  a  contract  may  be  independent, 
or  they  may  be  dependent  or  conditional  upon  one  another. 
If  they  are  independent,  failure  by  one  of  the  parties  to  per- 
form his  promise  does  not  discharge  the  contract ;  that  is, 
does  not  give  the  other  party  a  right  to  treat  the  contract  as 
repudiated,  but  simi)ly  gives  rise  to  a  claim  for  damages.'^ 
On  the  other  hand,  if  the  promise  of  one  party  is  dependent 
or  conditional  upon  the  promise  of  the  other,  the  performance 
of  the  latter  promise  is  either  a  condition  precedent  or  a  con- 
dition concurrent,  as  the  case  may  be,  to  the  obligation  of  the 
other  party  to  perform.  If  it  is  a  condition  precedent,  it 
must  be  performed  before  the  obligation  of  the  other  part\- 
can  arise;  if  it  is  a  condition  concurrent,  it  must  be  performed 
simultaneously  with  the  promise  of  the  other  party,  or,  in 
point  of  fact,  since  simultaneous  performance  is  impossibk-, 
except  in  contemplation  of  law,  there  must  be  concurrent  will- 
ingness to  perform  the  two  promises."    In  either  case  the  non- 

•^  Sales  Act,  §  11   (2),  b  Post  p.  208  et  seq.,  305. 

3  Post,   p.  208.  •Clnrk,  Cont.  (2d  VaU  4.-0. 

<  See  Sales  Act,  §  1  (3).  •  Clark,  Cont.  (2d  Ed.)  45S. 


22fi  CONDITIONS  AND  WARRANTIES.  (Ch.  7 

perfoTtnattce  of  the  condition  discharges  the  contract.  In  con- 
tracts' of  sale^  as  we  shall  see,  unless  otherwise  agreed,  delivery 
of  the  goods  and  payment  of  the  price  are  concurrent  con- 
ditions.'' 

The  difficulty  lies  in  discovering  whether  the  parties  regarded 
a  particular  term  as  essential  to  the  contract.  If  they  did, 
its  performance  is  a  condition  precedent,  and  failure  to  per- 
form it  discharges  the  contract.  If  they  did  not,  such  failure 
can  only  give  rise  to  an  action  for  damages.  The  question 
whether  a  particular  term  in  a  contract  is  a  dependent  or  an 
independent  promise  is  a  question  of  intention,  and  depends 
upon  the  construction  of  each  individual  contract.  Various 
rules  of  construction  for  ascertaining  the  intention  have  been 
attempted;  but  the  only  rule  that  can  safely  be  laid  down  is 
that  the  intention  is  to  be  ascertained  from  the  language  of 
the  parties  and  the  circumstances  under  which  the  contract  is 
made.*  As  was  said  by  Blackburn,  J. :  "Parties  may  think 
some  matter,  apparently  of  very  little  importance,  essential ; 
and,  if  they  sufficiently  express  an  intention  to  make  the 
literal  fulfillment  of  such  a  thing  a  condition  precedent,  it  will 
be  one ;  or  they  may  think  that  the  performance  of  some  mat- 
ter, apparently  of  some  importance  and  prima  facie  a  condi- 
tion precedent,  is  not  really  vital,  and  may  be  compensated  for 
in  damages,  and  if  they  sufficiently  expressed  such  an  intention, 
it  will  not  be  a  condition  precedent."  " 

"Conditions"  and  JVarranties. 

A  promise  upon  the  performance  of  Avhich  the  obligation 
of  the  other  party  is  conditional  may  thus  go  to  the  entire 
consideration,  as  in  the  case  of  the  promise  of  the  seller  to 
sell  and  deliver  the  goods  which  are  the  subject  of  the  con- 
tract. The  seller  may,  however,  expressly  or  by  implication, 
make  some  promise  relating  to  the  goods,  and  this  promise 

7  Post,  p.  268. 

«  Graves  v.  Legg,  9  Exch.  709,  23  Law  J.  Excb.  22S;  Behn  v.  Bur- 
iioss.  32  Law  J.  Q.  B.  204.  20.5;  Watchman  v.  Crook.  5  Gill.  &  J. 
(.Md.)  239;  Maryland  Fertilizing  &  Manuf'g  Co.  v.  Lorentz,  44  Md. 
21S;  Grant  v.  .loLnson,  .5  N.  Y.  247;  Kulght  v.  Worsted  Co.,  2  Cush. 
(Mass.)  271,  287;  Mill-Dam  Foundry  v.  Hovey,  21  Pick.  (Mass.) 
417,  per  Shaw,  C.  J. 

»  Bettini  v.  Gye,  1  Q.  B.  Div.  187. 


§§  70-72)  IN    OKNKUAL.  liL'lJ 

may  be  dependent  or  indcjiendcnt.  accordiny;^  to  the  intention  of 
the  parties;  that  is  its  performance  may  be  a  condition  prece- 
dent to  the  obHj^ation  of  tlie  buyer  to  accept  and  pay  fnr  the 
jj^oods,  or  it  may  not.  'I'hc  distinction  between  dependent  and 
independent  promises  is  fundamental,  and  the  nUes  of  law 
applicable  to  them  are  well  established ;  but  there  is  p^reat 
confusion  in  the  use  of  the  terms  by  which  these  promises  on 
the  part  of  the  seller  are  designated.  \'ery  generally  promises 
of  both  kinds  are  called  warranties;  but  often  the  term  "con- 
dition" is  applied  to  a  promise  of  the  first  kind,  and  the  terra 
"warranty"  is  applied  only  to  one  of  the  second  kind.'" 

The  use  of  "condition,"  in  the  sense  of  promise,  is  unfortu- 
nate." In  one  use  of  the  term,  "condition"  means  an  uncertain 
event  or  contingency  on  the  happening  of  which  the  obligation 
of  the  contract  depends ;  there  being  no  promise  that  the  event 
or  contingency  shall  happen.  In  such  case  the  obligation  of 
the  contract  does  not  attach  until  the  condition  is  performed. 
Such  conditions  are  sometimes  called  "contingent  or  casual 
conditions."  '^     As  has  been  pointed  out,  however,  the  word 

10  Cliahn.  Sale  of  Coods  Act  (Gtli  Kd.)  1S2;  Clark,  Cont.  (2a  Ed.l 
211.  Sir  William  Anson  lias  colJoctod  six  difft'font  senses  in  which 
'•warranty"  is  used  in  the  cases.     Anson,  Cont.  (5tb  I'}d.)  liiK). 

11  "The  term  'condition,'  as  applied  to  contracts,  appears  to  mean 
iiidifTerently  (a)  an  uncertain  event  on  the  happeninj:  of  which  the 
i>lili<,'ati()n  of  the  contract  is  to  depend,  and  (h)  the  stipulation  in 
the  contract  making  its  obligation  depend  on  the  hapiMjning  of 
such  event."     Chalm.  Sale  of  (Joods  Act  «>th  Ed.)  178. 

12  "There  is  an  important  distinction  between  what  may  be  called 
promisst)ry  conditions  and  contingent  or  casual  conditions.  In  the 
latter  case  the  obligations  of  both  parties  are  suspendcil  till  the 
ovent  takes  place.  In  the  former  case  the  nonperformance  of  the 
condition  by  the  promisor  (unless  excused  by  law)  gives  a  right  to 
the  promisee  to  treat  the  contract  as  repudiated;  that  is  to  say.  he 
is  discharged  from  his  part  of  the  contract,  and.  further,  he  has  a 
claim  for  damages.  In  the  one  case  the  obligations  of  the  contract 
do  not  attach.  In  the  other  case  the  contract  is  broken.  *  ♦  • 
Tn  tlie  older  cases  promissory  conditions  were  referred  to  as  'de- 
pendent covenants  or  promises.'  and  were  contrasted  with  Inde- 
pendent covenants  or  promises,  namely,  stipulations  the  breach  of 
which  gives  rise  to  a  claim  for  damages,  but  not  to  a  right  to  treat 
the  c-ontract  as  repudiated.  Now  the  term  'dependent  promise' 
appears  to  be  merged  in  the  wider  term  'condition  precedent."* 
Chalm.  Sale  of  Goods  Act  (Gth  Ed.)  17!». 


230  CONDITIONS   AND   WARRANTIES.  (Ch.  7 

•'condition"  is  often  applied  to  a  promise,  if  it  is  of  such  a 
nature  that  its  performance  is  a  condition  precedent  to  the  ob- 
Hgation  of  the  other  party  to  perform. ^^  For  the  sake  of  dis- 
tinction, the  term  "promissory  condition"  is  sometimes  ap- 
plied to  such  promises.  Thus,  in  a  contract  to  sell  by  descrip- 
tion, it  is  obvious  that  the  seller  does  not  perform  his  con- 
tract if  he  does  not  tender  goods  conforming  to  the  descrip- 
tion ;  and,  if  a  contract  contains  a  promise  which  forms  part  of 
the  terms  of  the  description  of  the  goods,  the  performance  of 
this  promise  is  a  condition  precedent  to  the  obligation  of  the 
buyer  to  accept  and  pay  for  the  goods.  Such  promises  often 
arise  by  implication,  as  in  the  case  of  the  seller's  implied  prom- 
ise that  he  has  a  right  to  sell  the  goods,^*  that  the  goods  shall 
correspond  with  the  description,^^  that  the  goods  shall  be  fit 
for  the  purpose  for  which  they  are  required,^^  that  they  shall 
be  of  merchantable  quality,^ '^  and  that  they  shall  correspond 
with  the  sample  in  quality.^*  In  the  English  Sale  of  Goods 
Act,  these  implied  promises  are  called  "conditions,"  ^*  while 
in  the  proposed  American  Sales  Act  they  are  called  "war- 
ranties." ^° 

A  warranty  is  ordinarily  said  to  be  a  promise  with  refer- 
ence to  the  subject  of  the  contract,  but  collateral  to  its  main  pur- 
pose.^^  A  warranty  is  defined  by  the  English  act  as  "an  agree- 
ment with  reference  to  the  goods  which  are  the  subject  of  a 
contract  of  sale,  but  collateral  to  the  main  purpose  of  such  con- 
tract, the  breach  of  which  gives  rise  to  a  claim  for  damages,  but 
not  to  a  right' to  reject  the  goods  and  treat  the  contract  as  repu- 

13  Pope  V.  Allis,  115  U.  S.  363,  6  Sup.  Ct.  69,  29  L.  Ed.  393.  "Con- 
(litious  are  either  statements  or  promises  which  form  the  basis 
of  the  contract.  *  *  *  When  a  term  in  the  contract  is  ascerc 
tained  to  be  a  condition,  then,  whether  it  be  a  statement  or  a  prom- 
ise, the  untruth  or  breach  of  it  will  entitle  the  party  to  whom  it  is 
made  to  be  discharged  from  his  liabilities  under  the  contract." 
Anson,  Cont.  (Gth  Ed.)  146.     See  Clarli,  Cont.  (2d  Ed.)  464. 

i«  Post  p.  242.  17  Post,  p.   252. 

15  Post.  p.  247.  18  Post,    p.  262. 

i«  Post,  p.  2r,2.  19  Sections  11-15. 

20  Sections  12-16. 

21  See  Chanter  v.  Hopkins,  4  Mees.  &  W.  399,  404;  Dorr  v. 
Fisher,  1  Cash.  (Mass.)  271. 


§§  70-72)  IN    OENEKAL.  231 

dialed."  -*  Where,  as  in  tliis  act,  "warranty"  is  used  in  this 
narrow  sense,  it  is  therefore  opposed  to  "condition,"  when  that 
word  is  used  in  the  sense  of  promise ;  the  (Hstinction  being  that 
between  independent  covenants  and  promises  and  dependent 
covenants  and  promises.^'  Yet,  ahhough  the  buyer  need  not 
accept  tlie  goods  if  any  "condition"  be  unfulfilled,  it  is  held  in 
England  and  in  many  states  that  he  may  waive  performance  of 
the  condition,  and  that  he  may  also  treat  the  nonperformance 
of  the  condition  as  a  breach  of  warranty.-*  Thus,  the  English 
act  provides:  "Where  a  contract  of  sale  is  subject  to  any  con- 
dition to  be  fulfilled  by  the  seller,  the  buyer  may  waive  the  con- 
dition, or  may  elect  to  treat  the  breach  of  such  condition  as  a 
breach  of  warranty,  and  not  as  a  ground  for  treating  the  con- 
tract as  repudiated."  ^^  In  the  proposed  American  Sales  Act, 
on  the  other  hand,  the  word  "condition"  is  restricted  to  condi- 
tion proper,  and  the  word  "warranty"  is  substituted  for  "con- 
dition," where  in  the  English  act  it  is  used  in  the  sense  of  prom- 
ise. The  American  act  provides :  "Where  the  property  in  the 
goods  has  not  passed,  the  buyer  may  treat  the  fulfillment  of  the 
seller's  obligation  to  furnish  goods  as  described  and  as  war- 
ranted expressly  or  by  implication  in  the  contract  to  sell  as  a 
condition  of  the  obligation  of  the  buyer  to  perform  his  promise 
to  accept  and  pay  for  the  goods."  ^^  It  is  pointed  out  by  the 
draftsmen  of  the  act  that  as  a  breach  of  warranty  justifies  re- 
jection of  the  goods,  and  also  an  action  for  damages  under  this 
draft,  the  full  meaning  of  the  English  act  has  been  pre- 
served.^^ 

On  the  whole,  the  use  of  the  words  "condition"  and  "war- 
ranty," as  they  are  used  in  the  American  act  seems  preferable, 
both  because  it  avoids  using  "condition"  with  a  double  mean- 
ing, and  because  the  fact  that  a  promise  is  or  is  not  in  form  col- 
lateral docs  not  always  determine  whether  it  is  a  "condition"  or 
"warranty,"  as  these  words  are  used  in  the  English  act.  When 
the  buyer  waives  the  performance  of  a  "condition,"  and  elects 

««  Section  G2  (1). 

2s  Chalni.  Sale  of  Goods  Act  (fitli  Ed.)  p.  29. 

2*  Post,    p.    372. 

2  0  Sale  of  Goods  Act,  §  11  (1)  (a). 

«o  Section  11  (2). 

2T  Note  to  section  14.     See  section  0.0.     Ct.  section  11    (1). 


232  CONDITIONS  AND   WARRANTIES.  (Ch.  7 

to  treat  the  breach  as  a  breach  of  "warranty,"  ^^  the  promise, 
which  has  thus  lost  its  character  as  a  condition  and  become  a 
warranty,  is  not  in  form  collateral.  And  on  a  sale  of  specific 
goods  by  description,  where  the  buyer  asks  for  goods  of  a  cer- 
tain kind,  the  seller  is  held  to  warrant  that  the  goods  furnished 
are  of  the  kind  asked  for,  although  his  obligation  to  do  so  does 
not  rest  upon  a  collateral  promise.^^  Again,  in  an  executory 
contract,  the  buyer  may,  it  seems,  reject  the  goods  if  they  are 
not  of  the  kind  or  quality  promised,  although  the  promise  was 
in  form  collateral.^'*  "It  is  thus  immaterial,"  says  Prof.  Wil- 
liston,^^  "whether  the  promise  is  collateral  or  not,  and  the  dis- 
tinction taken  between  conditions  and  warranties  has  probably 
caused  more  confusion  than  assistance.  The  essential  thing 
under  the  English  law  is  whether  the  contract  is  executed  or 
executory.  If  it  is  executed,  the  buyer  must  seek  redress  in  an 
action  or  counterclaim  for  damages,  or  in  recoupment  when 
sued  for  the  price ;  ^^  if  executory,  the  buyer  may  accept  the 
goods,  retaining  his  claim  for  damages, ^^  or  he  may  reject  the 
goods.  ^*  Doubtless  it  is  true  that  in  the  case  of  an  executed 
sale  the  promise  will  generally  be  collateral  in  form,  while  in 
the  case  of  an  executory  sale  it  will  generally  form  part  of  the 
description  of  the  goods.  But  neither  of  these  propositions  is 
invariably  true.  A.  may  agree  to  sell  goods  next  week,  war- 
ranted sound,  and  he  may  transfer  title  to-day  to  goods  ordered 
by  description." 

In  a  few  jurisdictions,  however,  the  distinction  between  "con- 
ditions" and  warranties  is  of  importance,  and  it  is  held  that, 
while  a  warranty  survives  acceptance,  a  condition  that  the 
goods  shall  be  of  a  certain  description  does  not,  so  far  as  con- 
cerns visible  defects,  when  the  buyer  has  had  an  opportunity 
for  inspection.'''^ 

Conditions  Proper. 

Attention  has  been  called  to  the  distinction  between  so-called 

promissory  conditions,  the  nonfulfillment  of  which  effects  a  dis- 
ss Ante,  p.  l^Jl.  8  0  Post  p.  3G6. 
2  0  Post,  p.  251.  31  16  llarv.  Law  Rev.  4G.",  467. 
•■»2  Post,  p.  3G8,     In  some  jurisdictions  he  may  rescind  for  breach 

of  warrantj'.     Post,  p.  368. 

88  Post,  p.  372.  »i  Post,  p.  365.  35  i»ost,  p.  373. 


§§70-72)  IN    C.KNEItAL.  2.T5 

charge  of  the  contract  by  breach ,  and  conditions  properly  so 
called,  sonieliines  called  "continj^eiit"  or  "casual"  conditions, 
and  sometimes  "suspensive"  or  "suspensory"  conditions;''" 
that  is  to  say,  conditions  the  performance  of  which  is  a  condition 
precedent  to  the  obligation  of  the  contract,  but  which  neither 
party  promises  shall  be  fulfilled. ^^  Such  conditions  suspend 
the  operation  of  the  promise  imtil  they  are  fulfilled,  as  where 
the  promise  of  the  buyer  is  conditional  upon  the  act  of  a  third 
person,  or  even  upon  his  satisfaction  with  the  goods. 

Same — Sale  Dependent  on  .-let  of  Third  Person. 

Where  the  performance  of  a  contract  is  dependent  upon  the 
act  of  a  third  person,  the  act  must  be  performed  before  the 
rights  dependent  upon  it  can  be  enforced.^*'  even  though  the 
third  person  unreasonably  refuses  to  act.  This  rule  applies  to 
a  contract  for  the  sale  of  goods  to  be  approved  by  a  third  per- 
son. Thus,  where  the  seller  sold  his  horse  for  1  shilling  cash, 
and  a  further  payment  of  i"20(),  provided  the  horse  should  trot 
18  miles  an  hour  within  a  month,  "J.  N.  to  be  the  judge  of  the 
performance,"  it  was  held  no  defense  to  the  buyer's  action  for 
the  delivery  of  the  horse  that  J.  N.  refused  to  be  present  at  the 
trial. ^"  If  the  third  person  withholds  his  approval  from  mo- 
tives of  fraud  or  bad  faith,  it  has  been  held  that  the  approval 
may  be  dispensed  with.'"  As  a  rule  his  decision  is  conclusive," 
but  not  if  it  is  procured  by  fraud. •*- 

8  0  Anson,  Cont.  (4th  Ed.)  20t;,  297;    Clark,  Cont.  (2d  Ed.)  450. 

3T  Auto,  p.  220. 

38  U.  S.  V.  Rohoson.  0  Pot.  (U.  S.)  aiit.  :}27.  0  L.  Ed.  142:  .Tobnson 
V.  Ins.  Co..  112  Aliiss.  4!».  17  Am.  Hop.  (;,->;  Ix'adl.ettor  v.  Ins.  Co..  13 
Me.  2(»r),  2l»  Am.  Doc.  HO.".;  Smith  v.  lirijrj.'s.  3  Donio  (X.  Y.)  73;  Kirtland 
V.  Mooro.  40  N.  J.  Ei\.  100,  2  Atl.  2tilt:  Clark,  Cont.  (2d  Ed.)  4t!0. 
Where  price  is  to  bo  lixod  by  a  third  porson,  ante,  p.   GO. 

80  P,ro<;don  v.  Marriott,  2  Kinj;.  N.  C.  473.  Cf.  Deyo  v.  Hammond. 
102  Mioh.  122.  GO  N.  W.  4.-».->,  25  E.  R.  A.  719. 

40  Baltimore  &  0.  R.  Co.  v.  I'.rydon.  05  Md.  Oil.  9  Atl.  120.  .57 
Am.  Rop.  318. 

*i  Robbins  V.  Clark.  129  Mass.  145;  Now  England  Trust  Co.  v. 
At)bott.  1(J2  Mass.  148.  38  N.  E.  432.  27  L.  R.  A.  271;  Thnrman  v. 
CAty  of  Omaha.  04  Neb.  490,  90  N.  W.  2.53  (niiiniou  of  attorney  on 
legality  of  bonds). 

*2  Shipway  v.  Broadwood  (lS99t   1   Q.   B.  309. 


234  CONDITIONS  AND   WARRANTIES.  (Ch.  7 

Same — Sale  of  Goods  to  he  Satisfactory. 

Where  it  is  a  term  of  the  contract  that  the  goods  shall  be 
satisfactory  to  the  buyer,  his  satisfaction  is  a  condition  prece- 
dent to  his  obligation  to  accept  and  pay  for  the  goods.  In  such 
case  it  is  immaterial  that  the  goods  are  such  that  the  buyer 
ought  to  have  been  satisfied  with  them ;  for,  although  the  com- 
pensation of  the  seller  may  thus  be  dependent  on  the  caprice 
of  the  buyer,  who  unreasonably  refuses  to  accept  the  goods, 
yet  the  seller  cannot  be  relieved  from  a  contract  into  which  he 
has  voluntarily  entered.*^  Of  course,  the  parties  may  agree 
that  the  satisfaction  is  to  be  determined  by  the  mind  of  a  rea- 
sonable man,  and  not  by  the  mere  test  or  liking  of  the  defend- 
ant.** In  contracts  in  which  the  subject-matter  involves  the 
personal  taste  or  judgment  of  the  promisor,*^  for  example,  a 
suit  of  clothes  *®  or  a  picture,*^  the  courts  construe  the  contract 
as  making  the  promisor  the  sole  judge.  And  the  tendency  of 
the  courts  is  perhaps  to  construe  all  contracts  of  sale  providing 
for  the  satisfaction  of  the  promisor  in  the  same  way.**    Where, 

<3  McCarren  v.  McNulty,  7  Gray  (Mass.)  139;  McClure  v.  Briggs, 
r)8  Yt  82.  2  Atl.  583,  5G  Am.  Rep.  557;  Seeley  v.  Welles,  120  Pa. 
CO.  13  Atl.  736;  Goodrich  v.  A'an  Nortwick,  43  111.  445;  Warder, 
Bushnell  &  Glessner  Co.  v.  Whitish,  77  Wis.  430,  46  N.  W.  540;  D. 
M.  Osborne  &  Co.  v.  Francis,  38  W.  Va.  312,  18  S.  E.  591;  Hous- 
ding  T.  Solomon,  127  Mich.  654,  87  N.  W.  57;  Garland  v.  Keeler  (N. 
D.)  106  N.  W.  484. 

4*  Hawkins  v.  Graham,  149  Mass.  284,  21  N.  E.  312,  14  Am.  St. 
Kep.  422;  Lockwood  Mfg.  Co.  v.  Regulator  Co.,  183  :Mass.  25,  66 
X.  E.  420. 

<8  See   cases   cited   note   43,    supra. 

«  Brown  v.  Foster,  113  Mass.  136,  IS  Am.  Rep.  463. 

■IT  Gibson  v.  Cranage,  39  Mich.  49,  33  Am.  Rep.  351;  Zaleski  v. 
Clark,  44  Conn.  218,  26  Am.  Rep.  446;  Pennington  v.  Howland,  21 
R.  I.   65.  41  Atl.   891,   79  Am.   St.   Rep.   774. 

*8  Seeley  v.  Welles,  120  Pa.  69,  13  Atl.  736;  Adams  Radiator  & 
Boiler  Works  v.  Schnader,  155  Pa.  394,  26  Atl.  745,  35  Am.  St.  Rep. 
893;  Silsby  Mfg.  Co.  v.  Town  of  Chico  (C.  C.)  24  Fed.  893;  Camp- 
bell Printing  Press  Co.  v.  Thorp  (C.  C.)  36  Fed.  414.  1  L.  R.  A. 
CA5;  Wood  Reaping  &  Mowing  Mach.  Co.  v.  Smith,  50  Mich.  505.  15 
N.  W.  906,  45  Am.  Rep.  57;  McCormick  Harvesting  Mach.  Co.  v. 
Chesrown.  33  .Minn.  32,  21  N.  W.  846;  Exhaust  Ventilator  Co.  v. 
Railroad  Co..  60  Wis.  218,  28  N.  W.  343,  57  Am.  Rep.  257;  Williams 
-Mfp.  Co.  V.  Brass  Co..  173  Mass.  356,  53  N.  E.  862. 

Tiie   courts    frequently   add   the   qualification   that   the  promisor 


§§  70-72)  IN  oknki:al.  23:> 

however,  the  subject-matter  involves  such  considerations  as 
salabiHty,  operative  fitness,  and  mechanical  utility,  there  is  more 
reason  for  construing  the  satisfaction  contemplated  as  that  of 
a  reasonable  man.'"  It  seems  that  the  question  in  such  case 
siiould  be  the  determination  of  the  intention  as  evinced  by  the 
particular  contract,  and  that  no  invariable  rule  of  interpretation 
can  be  laid  down."^"  The  rules  governing  the  time  when  the 
property  passes,  where  goods  are  thus  delivered  to  the  buyer 
on  trial,  or  on  approval  or  on  satisfaction,  and  the  effect  of  re- 
taining the  goods  without  giving  notice  of  dissatisfaction,  have 
already  been  considered.'^ 

Same — Goods  "to  Arrive." 

A  not  infrequent  contract  is  one  to  sell  goods  "to  arrive"; 
that  is,  to  sell  goods  conditionally  upon  their  arrival  by  a  desig- 
nated vessel.  A  contract  to  sell  goods  to  arrive  by  a  designated 
vessel  does  not  import  a  promise  on  the  part  of  the  seller  that 
the  goods  shall  arrive,  but  the  obligation  of  the  contract  is  con- 
ditional upon  the  arrival  of  the  goods  in  the  vessel  designated ; 
that  is,  the  contract  is  dependent  upon  a  double  condition  pre- 
cedent— that  the  vessel  shall  arrive  and  that  the  goods  shall  be 
on  board  upon  her  arrival. ^^     The  condition  may,  of  course, 

must  act  In  good  faith.  Silsliy  Mfg.  Co.  v.  Town  of  Cbico,  supra; 
Singerly  v.  Thayer.  108  Pa.  201,  2  Atl.  230,  56  Am.  Kep.  207;  lu 
re  George  M.  Hill  Co..  123  Fed.  800,  59  C.  G.  A.  354. 

*»  See  Wood  Ueaping  &  Mowiug  Macli.  Co.  v.  Smith,  supra; 
Scbliess  v.  City  of  Gnind  Rapids,  131  Mieli.  52,  90  N.  W.  700;  Du- 
plex Safety  Boiler  Co.  v.  Gardeu,  101  N.  Y.  387,  4  N.  E.  749.  54 
Am.  Rep.  700;  Hummel  v.  Stern.  21  App.  Div.  544,  48  N.  Y.  Supp. 
.■528,  aflinned  1<^  N.  Y.  G03,  .".S  N.  E.  1088;  Union  I>eague  Club  v. 
Machine  Co..  204  111.  117.  08  N.  E.  409;  Haney-Campbell  Co.  v. 
Association,  119  Iowa,  188,  93  N.  W.  297. 

BO  Wood  Reaping  «&  Mowing  Mach.  Co.  v.  Smith,  50  Micb.  50."i.  l.-> 
N.  W.  90<>.  45  Am.  Rop.  57;  Hawkins  v.  Graham.  149  Mass.  284,  21 
N.  E.  312.  14  Am.  St.  Rep.  422;  Magee  v.  Lumber  Co.,  78  Minn.  11. 
80  N.  W.  781;  Electric  Lighting  Co.  of  Mobile  v.  Elder,  115  Ala.  13X. 
21  South.  983;  McNeil  v.  Armstrong.  81  Fed.  943.  27  C.  C.  A.  10; 
City  of  Elizabeth  v.  Fitzgerald.  114  Feil.  547,  52  C.  0.  A.  321.  See 
Clark,  Cout.  (2d  Ed.)  432. 

51  Ante.  p.  144. 

52  Ix)vatt  V.  Hamilton,  5  Mees.  &  W.  039;  Johnson  v.  McDonald.  9 
Mees.  &  W.  GOO;  Shields  v.  Pettie,  4  N.  Y.  122;  Neldou  v.  Smith.  36 
N.  J.  Law,  148. 


236  CONDITIONS   AND   WARRANTIES.  (Ch.  7 

be  limited  to  the  arrival  of  the  goods,  and  not  to  their  arrival 
in  a  particular  vessel. ^^  And  the  seller  may  warrant  that  the 
goods  are  on  board,  so  that  the  contract  to  sell  shall  be  condi- 
tional on  the  arrival  of  the  vessel  only.^* 


WARRANTIES. 

73.  A  contract  of  sale   may  be   accompanied  by  one   or  more 

Ttrarranties,  express  or  implied,  given  by  the  seller  to 
the  buyer. 

74.  A  xirarranty  may   be    either— 

(a)  Included  in  the  contract  of  sale,  or 

(b)  Given    after   the    contract   of   sale   is   completed;   but,   in 

the  latter  case,  it  must  be  supported  by  a  fresh  con- 
sideration. 

75.  EXPRESS    AVARRANTIES.      According   to   the   weight   of 

authority,  any  affirmation  of  fact  or  any  promise  by 
the  seller  relating  to  the  goods  in  an  express  war- 
ranty, if  the  natural  tendency  of  such  affirmation  or 
promise  is  to  induce  the  buyer  to  purchase  the  goods, 
and  if  the  buyer  purchases  the  goods  relying  thereon; 
but  in  many  jurisdictions  it  is  necessary,  also,  that 
the  seller  shall  have  intended  to  -warrant.^s 

In  General. 

A  warranty  is  not  one  of  the  necessary  elements  of  a  contract 
of  sale.  It  is  usually  said  to  be  a  collateral  engagement  or 
promise ;  but,  broadly  speaking,  any  promise  by  the  seller  with 
reference  to  the  goods  which  are  the  subject  of  the  contract  of 
sale  is  a  warranty.^®  If  the  promise  or  warranty  be  such  that 
its  performance  is  a  condition  precedent  to  the  obligation  of  the 
seller  to  perform  on  his  part,  it  is  often  called  a  "condition,"  as 
distinguished  from  a  "warranty."  ^'^  A  promise  which  forms 
part  of  the  terms  of  the  description  of  the  goods  is  of  this  na- 

53  Harrison  v.  Fortlage,  161  U.  S.  57,  16  Sup.  Ct.  488,  40  L,.  Ed. 
616;   Rogers  v.  Woodruff,  23  Ohio  St.  632,  13  Am.  Rep.  276. 

54  Hale  V.  Rawson,  4  C.  B.  N.  S.  85.  Cf.  Dike  v.  Reitlinger,  23 
Hun  (X.  Y.)  242;  Abe  Stein  Co.  v.  Robertson,  167  N.  Y.  101,  60  N.  R 
329. 

5  5  See  Sales  Act,  §  12. 

66  Ante,  p.  226.  «s7Ante,  p.  226. 


i;§  73-75)  WAKKAMiES.  2'M 

ttire.  The  distiiieiion  between  these  two  kinds  of  promises 
must  be  borne  in  mind,  but  in  these  paj^cs  the  term  "warranty" 
is  not  confined  to  its  narrower  ineanin<j. 

A  warranty  may  be  express  or  impHcd.  An  im()Hed  war- 
ranty necessarily  forms  part  of  the  contract.  An  express  war- 
ranty, also,  must  form  part  of  the  cotitract,  unless  it  be  g-iven 
after  the  contract  is  entered  into  and  is  supported  by  new  con- 
sideration.''* A  subsequent  warranty,  not  on  a  new  considera- 
tion, is  void."" 

Inasmuch  as,  by  the  rules  of  evidence,  when  once  a  contract 
has  been  reduced  to  writin.c^,  the  entire  contract  is  deemed  to  be 
expressed  in  the  instrument,  parol  evidence  is  inadmissible  to 
prove  a  warranty  where  none  is  contained  in  the  instrument, 
or  to  vary  the  terms  of  a  warranty  therein  expressed. "°  Of 
course  this  rule  does  not  exclude  such  proof  if  the  writing  is 
not  the  contract,  as  where  it  is  a  mere  receipt  or  bill  of  par- 
cels."^ Nor  does  the  fact  that  the  contract  has  been  reduced  to 
writing  necessarily  exclude  an  implied  warranty,  if  under  the 
circumstances  of  the  case  such  a  warrantv  would  otherwise 


&^  (>iii;:ar  v.  Chamberlain,  14  Wis.  2.1S;   TorU'r  v.  Pool,  O'J  Ca.  SAS. 

5"  Koscorla  v.  Thomas,  3  Q.  B.  2'M;  Ilogins  v.  riympton.  11  Tick. 
(Mass.)  97;  Summers  v.  Vauf^hau,  35  Ind.  :{23,  9  Am.  Rep.  741;  More- 
house V.  Comstock,  42  Wis.  (i2(l;  Aultmau  v.  Kennedy.  33  Minn.  .339. 
23  N.  W.  ."j28;  Manasquam  Gravel  Co.  v.  P.  Sandford  Koss.  73  N.  J. 
Law.  5<I0,  r.3  Atl.  IWl.  Cf.  Blaess  v.  Nichols  &  Shepard  Co.,  115 
Iowa,  373.  88  X.  W.  829. 

'••"  Kaln  v.  Old,  2  Barn.  &  C.  027;  K.indall  v.  Rhodes.  1  Curt.  (U.  S.) 
90.  Fed.  Cas.  No.  n..550:  Frost  v.  P.landiard.  97  Mass.  1.55;  Merriam 
V.  Field,  24  Wis.  (V4<t;  Shepherd  v.  Gilroy,  4<;  Iowa.  193;  Zimmerman 
Mf^:.  Co.  v.  Dolph.  104  Mich.  281,  f;2  N.  W.  339;  .1.  I.  Case  Plow  Works 
V.  Niles.  90  Wis.  .590.  (ki  X.  W.  1013;  Vierling  v.  Furnace  Co..  170 
111.  1S9.  48  X.  E.  1(m;9;  Seitz  v.  Machine  Co..  141  I'.  S.  510.  12  Sup. 
Ct.  4(1.  .35  L.  Ed.  837;  Buckstaff  v.  Russell,  79  Fed.  Gil,  25  C.  C.  A. 
129:  Rollins  Engine  Co.  v.  Forpe  Co.,  73  X.  II.  92.  59  Atl.  .382.  <«  L. 
R.  A.  441:  McXaiiL'liton  v.  Walil.  99  Minn.  92.  108  X.  W.  -1(;7:  jiost. 
p.  205. 

01  Allen  v.  Pink.  4  Mces.  &  W.  140:  Atwater  v.  Clancy.  107  Mass. 
.3(59;  Filkins  v.  Whyl:ind.  24  X.  Y.  338;  Irwin  v.  Thompson.  27  Kan. 
043;  Xeal  v.  Flint.  88  Me.  72.  ,33  Atl.  OiiO;  Xauman  v.  lillman.  I<i2 
Wis.  92,  78  X.  W.  1.59  (conditional  sale  note);  Potter  v.  Easton.  82 
Minn.  247.  S4  N.  W.  1011. 


238  CONDITIONS  AND  WARRANTIES.  (Ch.  7 

arise.**    Neither  does  an  express  warranty  necessarily  exclude 
an  implied  warranty.*^ 

Intention  to  Warrant. 

No  form  of  words  is  necessary  to  create  a  warranty.**  Nor, 
by  weight  of  authority,  is  it  necessary  that  the  seller  should 
have  intended  to  warrant.  Many  decisions,  indeed,  do  so  re- 
quire.*^ Thus  it  was  said  in  a  Pennsylvania  case:  **  "Though 
to  constitute  a  warranty  requires  no  particular  form  of  words, 
the  naked  averment  of  a  fact  is  neither  a  warranty  of  itself  nor 
evidence  of  it.  In  connection  with  other  circumstances,  it  cer- 
tainly may  be  taken  into  consideration;  but  the  jury  must  be 
satisfied,  from  the  whole,  that  the  vendor  actually,  and  not  con- 
structively, consented  to  be  bound  for  the  truth  of  his  repre- 
sentation. Should  he  have  used  expressions  fairly  importing 
a  willingness  to  be  bound,  it  would  furnish  a  reason  to  infer 
that  he  had  intentionally  induced  the  vendee  to  treat  on  that 
basis ;  but  a  naked  affirmation  is  not  to  be  dealt  with  as  a  war- 
ranty, merely  because  the  vendee  had  gratuitously  relied  on  it, 
for  not  to  have  exacted  a  direct  engagement,  had  he  desired  to 

«2  Blackmore  v.  Fairbanks,  Morse  &  Co.,  79  Iowa,  282,  44  N.  W. 
548 ;  Carletoii  v.  Lombard,  149  N.  Y.  137.  43  N.  E.  422 ;  Id.,  149  N.  Y. 
601,  44  N.  E.  1121;  Cooper  v.  Payne,  103  App.  Div.  118,  93  N.  Y. 
Supp.  69;  Elgin  Jewelry  Co.  v.  Estes  &  Dozier,  122  Ga.  807,  50  S.  E. 
939;  Hooven  &  Allison  Co.  v.  Wirtz  (N.  D.)  107  N.  W.  1078.  Of. 
Lombard  Water-Wheel  Governor  Co.  v.  Paper  Co.,  101  Me.  114,  63 
All.  555.  0  L.   R.  A.  (N.  S.)  180. 

6  3  Post,  p.  265. 

6*  Chapman  v.  Murch,  19  Johns.  (N.  Y.)  290,  10  Am.  Dec.  227; 
Shnman  v.  Heator  (Neb.)  106  N.  W.  1042. 

In  early  times  the  word  "warrant"  or  its  equivalent  appears  to 
have  been  necessary.  Ohandelor  v.  Lopus,  Cro.  Jac.  4;  2  Harv.  Law 
Rev.  9. 

6  5  McFarland  v.  Newman,  9  Watts  (Pa.)  55,  34  Am.  Dec.  497; 
Holmes  v.  Tyson,  147  Pa.  305,  23  Atl.  564,  15  L.  R.  A.  209 ;  Mahaffey 
V.  Ferguson,  150  Pa.  156,  27  Atl.  21;  House  v.  Fort,  4  Blackf.  (Ind.) 
294;  Enger  v.  Dawley,  62  Vt.  104,  19  Atl.  478  (but  see  Hobart  v. 
Yoimg,  6.3  Vt.  363,  21  Atl.  612,  12  L.  R.  A.  093) ;  Kircher  v.  Conrad,  9 
Mont.  191,  23  Pao.  74.  7  L.  R.  A.  471,  18  Am.  St.  Rep.  731.  See  also, 
Hopkins  V.  Tanquoray,  15  C.  B.  130  (cf.  Bannerman  v.  White,  10 
C.  B.  N.  S.  844);  Peml>erton  v.  Dean,  88  Minn.  60,  92  N.  W.  478,  60 
L.  R.  A.  :«1,  97  Am.  St.  Rep.  503. 

66  McFarland  v.  Newman,  supra. 


§§  73-75)  WAKKANTIKS.  2:51) 

buy  on  the  vendor's  juilgnicnt,  must  be  counted  an  instance  of 
folly."  But  other  decisions  hold  with  better  reason  that  the 
question  is.  not  whether  the  seller  intended  his  affirmation  as  a 
warranty,  but  whether  its  natural  tendency  was  to  induce  the 
buyer  to  purchase  the  goods,  and  whether  he  did  purchase 
them  in  reliance  upon  it."'  "If  the  representation  as  to  char- 
acter or  quality  of  the  article  sold  be  positive,  and  not  mere 
matter  of  opinion,  and  the  vendee  understands  it  and  relies  up- 
on it  as  a  warranty,  the  vendor  is  bound  thereby,  no  matter 
whether  he  intended  it  to  be  a  warranty  or  not."  '"  "He  is  re- 
sponsible for  the  lang^uaRcs  he  uses,  and  cannot  escape  liability 
by  claiming  that  he  did  not  intend  to  convey  the  impression 
which  his  language  was  calculated  to  produce  upon  the  mind  of 
the  vendee."  ®® 

Fact  or  Opinion. 

A  statement  of  opinion  or  a  mere  commendatory  expression 
will  not  amount  to  a  warranty.''**  Whether  a  statement  is  an  af- 
firmation of  fact,  or  whether  it  is  simply  a  statement  of  opinion 

«T  Hawkins  v.  Poinborton.  .".1  X.  Y.  108.  10  Am.  IIom  '';n."> ;  Fiiirbauk 
ranuin;;  Co.  v.  .Motzj;er,  118  N.  Y.  2(J0,  23  N.  E.  272,"  IG  Am.  St.  Uop. 
7r»3;  Stroud  v.  ricrce,  0  Allen  (Mass.)  41.3;  Hobart  v.  Yoiin^.  03  Vt. 
:ilS,  21  Atl.  G12.  12  L.  K.  A.  m?,:  K<Mmor  v.  Ilanling.  S."  111.  2<j4.  2G8, 
28  Am.  Rep.  015;  Ormsby  v.  Riuld.  72  Iowa,  SO.  .*«  N.  W.  4.".7;  Mur- 
phy V.  McGraw,  74  Mich.  .318.  41  N.  W.  917;  McCIintoek  v.  Emick. 
87  Ky.  KjO.  7  S.  W.  0<):'.:  Ilerrou  v.  Dibrell,  87  Va.  28'.>.  12  S.  E.  074; 
Ei-skine  v.  Swaiison,  4.")  Nob.  707.  04  N.  W.  210;  Huntinstnu  v.  Lom- 
bard, 22  ^Vash.  202.  00  Pac.  414;  Noi-tlnvostorn  Lumi)er  Co.  v.  Cal- 
lendar,  30  AVasli.  41)2,  70  Pac.  3<);  Ilarrigan  v.  Thresher  Co.,  81  S. 
W.  201,  20  Ky.  Law  Kci).  317. 

The  atlirmation  must  bo  made  in  such  manner  and  under  sueh  cir- 
cumstances as  to  justify  the  buyer  in  believiiif:  that  a  warranty  was 
intended.  Zimmerman  v.  Morrow,  28  Minn.  307,  10  N.  W.  130;  Tor- 
kelson  V.  .Torpenson.  28  Minn.  3,S"5.  10  N.  W,  410. 

A  warranty,  if  ofM^rative  in  inducing  the  sale,  need  not  he  the 
sole  inducement.     >ritchell  v.  Pinckney,  127  Iowa,  000,  104  N.  W.  280. 

88  Ingraham  v.  Railroad  Co.,  19  R.  L  3.'>0.  ;«  Atl.  875. 

60  Hawkins  v.  Pemberton.  r.l  N.  Y.  108.  10  Am.  Rep.  .50."). 

TO  Power  r.  Rarham,  4  Adol.  i^-  E.  473:  Ilenshaw  v.  Rol»ins,  0  Mete. 
(Mass.)  S3.  88.  43  Am.  Dec.  307:  Warren  v.  Coal  Co.,  83  Pa.  437.  44it: 
Kenner  v.  Harding.  85  111.  204.  28  Am.  Rep.  015;  Robinson  v.  Harvcv. 
82  111.  58;  Austin  v.  Nickerson.  21  AVis.  542,  543;  Mason  v.  Chaj)- 
pell,  15  C.rat.  fVa.)  572.  .583;  James  v.  Bocage.  45  Ark.  284;  Rair.sdaie 
V.  Shipp,  108  Ga.  817,  34  S.  E.  107;    Quis  v.  Halloran.  74  App.  Dlv. 


240  CONDITIONS  AND  WARRANTIES.  (Ch.  7 

or  a  commendatory  expression,  often  depends  on  the  nature  of 
the  sale  and  the  circumstances  of  the  case.  "In  determining 
whetlier  there  was  in  fact  a  warranty,"  said  the  court  in  a  lead- 
ing case,  "the  decisive  test  is  whether  the  vendor  assumes  to  as- 
sert a  fact  of  which  the  buyer  is  ignorant,  or  merely  states  an 
opinion  or  judgment  upon  a  matter  of  which  the  vendor  has  no 
special  knowledge,  and  on  which  the  buyer  may  be  expected, 
also,  to  have  an  opinion  and  to  exercise  his  judgment.  In  the 
former  case  there  is  a  warranty;  in  the  latter,  not."  ^^  If  the 
language  is  not  unmistakable,  the  question  is  for  the  jury;  '^^ 
though,  if  the  warranty  is  contained  in  a  written  contract,  the 
construction  of  the  warranty  is  for  the  court.'^^  Of  course, 
the  question  whether  the  language  is  unmistakable  will  be  de- 
cided differently  by  different  courts.  Thus  in  a  case  where  two 
pictures  were  sold  at  auction  by  a  catalogue,  in  which  one  was 
said  to  be  by  Claude  Lorraine,  and  the  other  by  Teniers,  Lord 
Kenyon  held  this  no  warranty  that  the  pictures  were  genuine 
works  of  those  masters,  but  merely  an  expression  of  opinion.'^* 
But  where  the  seller  sold,  by  a  bill  of  parcels,  "four  pictures, 

621,  77  N.  Y.  Supp.  196;  Sbiretzki  v.  Julius  Kessler  &  Co.  (Ala.)  37 
South.  422. 

In  the  absence  of  fraud,  a  statement  of  quality,  accompanied  by 
refusal  to  warrant,  is  to  be  deemed  an  expression  of  opinion.  Lynch 
V.  Curfman,  65  Minn.  170,  68  N.  W.  5. 

Where  the  seller  said  that  a  mare  was  sound  to  the  best  of  his 
knowledge,  refusinj?  to  warrant,  and  he  knew  the  mare  to  be  unsound, 
it  was  held  that  there  was  a  qualified  warranty  that  she  was  sound 
to  the  best  of  his  knowledge.    Wood  v.  Smith,  5  Man.  &  R.  124. 

71  Keuner  v.  Harding,  85  111.  264,  28  Am.  Rep.  615.  See,  also,  Pas- 
ley  V.  Freeman,  3  Term  R.  57;  Roberts  v.  Applegate,  153  111.  210, 
38  N.  E.  676  (cf.  Eyers  v.  Haddem  [C.  C]  70  Fed.  648). 

72  Stucley  V.  Baily,  1  Hurl.  &  C.  405,  417,  31  Law  J.  Exeh.  483; 
Power  V.  Barbara,  4  Adol.  &  E.  473;  Edwards  v.  Marcy,  2  Allen, 
(Mass.)  486,  490;  Tuttle  v.  Brown,  4  Gray  (Mass.)  457,  64  Am.  Dec. 
80;  Osgood  v.  Lewis,  2  Har.  &  G.  (Md.)  495,  18  Am.  Dec.  317;  Kings- 
ley  V.  Johnson,  49  Conn.  462;  Crenshaw  v.  Slye,  52  Md.  140;  Claghorn 
V.  Lingo.  02  Ala.  230;  Thome  v.  McVeagh,  75  111.  81;  McDonald  Mfg. 
Co.  V.  Thomas,  .53  Iowa,  558,  5  N.  W.  737;  Erskine  v.  Swanson,  45 
Xeb.  767,  64  N.  W.  216;  Sauerman  v.  Simmons,  74  Ark.  563,  86  S. 
W.  429. 

7  3  Osgood  V.  Lewis,  2  Har.  &  G.  (Md.)  495,  18  Am.  Dec.  317;   Rice 
V.  Codman,  1  Allen  (Mass.)  377,  380. 
T*  Jondwine  v.  Slade  (1797)  2  Esp.  572. 


§,^  73    70)  WAIIUANTIES.  211 

views  in  Wnicc,  Canalctti,"  it  was  left  to  tlic  jury  to  say 
whether  the  seller  meant  to  warrant  them  as  genuine  works  of 
Canaletti,  and  Lord  Dcnman  distint^^uishcd  the  case  from  the 
precedint^  one  hy  the  suggestion  that  Canaletti  was  a  compara- 
tively modern  painter  of  whose  works  it  would  he  possible  to 
make  proof  as  a  matter  of  fact,  but  that  in  the  case  of  very  old 
masters  the  assertion  was  necessarily  matter  of  opinion.'"  It 
would  be  beyond  the  scope  of  this  book  to  consider  in  detail 
particular  expressions  wliich  have  Wvn  liold  to  be  warranties. 

Knoiiii  Defects. 

As  a  rule  a  jj^eneral  warranty  is  held  not  to  extend  to  known 
defects  or  to  defects  apparent  on  a  simple  inspection.'*  This 
rule  rests  on  the  presumed  intention  of  the  parties,  who  cannot 
be  supposed  the  one  to  assert,  and  the  other  to  rely  on.  the 
truth  of  what  they  know  to  be  untrue.  But  the  warranty  may 
be  so  expressed  as  to  protect  the  buyer  against  the  consequen- 
ces of  patent  defects,  and  an  intention  to  include  them  w'ill 
readily  be  inferred  in  doubtful  cases,  where  the  buyer  may  nat- 
urally prefer  to  rely  on  the  warranty  rather  than  on  his  own 
judgment.'' 

75  Tower  V.  Barliam  (18.'^n)  4  Adol.  &  E.  473.  Canalotti  died  In 
17<;S,  Claude  Lorraine  in  l(i82.  and  Ti'niers  (tlie  yoimger)  In  10!)4. 
•Vnd  Koe  Loin  I  v.  Tuclvcr.  4  Car.  &  P.  l.'j. 

7«  P.uttorlii'ld  V.  HiuTouulis.  1  Sali<.  211;  Margetson  v.  Wriglit,  7 
Ring.  rA^].  8  Ping,  4rA;  Soliiiyler  v.  Uuss,  2  Caines  (N.  Y.)  202;  Pen- 
nott  V.  Km-lian,  70  N.  Y.  MSO;  Hill  v.  Nnrlli.  34  Vt.  004;  Loavitt  v. 
Fletclior.  00  X.  II.  182;  McCorniirk  v.  Kelly.  28  Minn.  135,  9  N.  W. 
07.">;  Kagsdalo  v.  Sliipp.  108  C.a.  817.  34  S.  E.  107.  The  rule  does  not 
apply  if  the  seller  artilicially  conoeals  the  olijects  from  the  buyer. 
Cbadsey  v.  Creene.  24  Conn.  .")02 ;  Keinier  v.  Harding,  8.1  111.  2(U.  28 
Am.  Kei).  01.".;  White  v.  Oakes,  88  Me.  367,  34  Atl.  175,  32  L.  IL  .\. 
r>'.»2;  Scott  V.  Manufacturing  Co..  70  Kan.  4'.lS.  78  Pac.  823;  Id..  70 
Kan.  .".<K>.  80  Pac.  U",;  Moure  v.  Koger.  113  Mo.  App.  423.  87  S. 
W.  002. 

-'  Hill  V.  North,  .34  Vt.  004:  Brown  v.  Bigolow.  10  Allen  (Mass.l 
242;  Siiewalter  v.  Ford,  .34  Miss.  417;  Marshall  v.  Drawhorn,  27  (la. 
275,  279;  McCormick  v.  Kelly,  28  Minn.  13."..  1.38.  9  N.  W.  075;  l^ran- 
son  V.  Tiu-ner.  77  Mo.  4S!>;  Watson  v.  Roode.  .30  Neb.  2tV4.  40  N.  W. 
401 ;  Fitzgerald  v.  Evans.  49  Minn.  .541.  .'.2  N.  W.  143 ;  Hansen  v.  Caar, 
Scott  &  Co..  03  Miiui.  94,  05  N.  W.  254. 

Tiff.Sales(2d  Ed.)— 16 


242  CONDITIONS   AND   WARRANTIES.  (Ch.  7 

Future  Events. 

Blackstone  says  that  "the  warranty  can  only  reach  to  things 
in  being  at  the  time  the  warranty  was  made,  and  not  to  things 
in  futuro ;  as  that  a  horse  is  sound  at  the  buying  of  him,  not 
that  he  will  be  sound  two  years  hence."  "^  But  the  law  is  now 
different,  and  the  seller  may  undertake  to  indemnify  the  buyer 
against  defects  which  may  arise  in  the  future  or  future  events.'^* 
Thus  warranties  in  respect  to  machines  as  to  their  sufficiency 
to  do  the  required  work  are  frequent.^"  At  the  same  time  a 
warranty  in  respect  to  the  soundness,  condition,  or  quality  of 
the  goods  will  usually  be  construed  as  applying  to  their  sound- 
ness, condition,  or  quality  at  the  time  of  the  sale,  and  not  at 
some  future  time.^^ 


IMPLIED  ■WARRANTY   OF  TITLE. 

76.  In  a  contract  to  sell  or  a  sale,  unless  a  contrary  intention 
appears,  there  is  an  implied  'warranty  (sometimes  call- 
ed a  condition)  on  the  part  of  the  seller  that  in  the 
case  of  a  sale  he  has  title  to  the  goods,  and  that  in 
the  case  of  a  contract  to  sell  he  will  have  title  to  the 
goods  at  the  time  T^hen  the  property  is  to  pass;  but 
in  some  states,  in  the  case  of  a  sale,  the  warranty  is 
confined  to  cases  in  xphich  the  seller  is  in  possession 
of  the  goods. 

There  has  never  been  any  question  that  in  an  executory  con- 
tract the  seller  warrants  by  implication  the  title  to  the  goods 
which  he  promises  to  sell ;  or  that  in  the  sale  of  a  specific  chat- 
tel an  affirmation  by  the  seller  that  the  chattel  is  his  is  equiva- 

78  3  Kl.  Comm.  16G. 

7  9  Eden  v.  Parkison,  2  Doug.  (Mich.)  735;  Osbom  v.  Nicholson,  13 
Wall.  (U.  S.)  654,  20  L.  Ed.  689;  Snow  v.  Manufacturing  Co.,  69  Ala. 
Ill,  44  Am.  Rep.  509. 

soGrieb  v.  Cole,  60  Mich.  307,  27  N.  W.  579,  1  Am.  St.  Rep.  533; 
Latham  v.  Shipley.  80  Iowa.  543,  53  N.  W.  343;  Hansen  v.  Gaar, 
Scott  &  Co.,  63  Minn.  94,  65  N.  W.  254;  J.  I.  Case  Threshing-Machine 
Co.  V.  MoKinnon,  82  Minn.  75,  84  N.  W.  646. 

81  Lord  V.  Edwards.  14.S  Mass.  476.  20  N.  E.  161,  2  L.  R.  A.  519, 
12  Am.  St.  Rep.  581 ;  Luthy  v.  Waterbury,  140  111.  664,  30  N.  E.  351; 
Drews  v.  Ann  River  Logging  Co.,  53  Minn.  199.  54  N.  W.  1110; 
English  V.  Commission  Co..  57  Fed.  451,  6  C.  C.  A.  416;   post,  p.  261. 


>J  76)  l.Ml'l.Ii:i»    WAKKANTY    OF    TITLE.  L'J.'J 

kilt  to  a  warranty  of  title;  or  that  such  an  affinnation,  with  the 
coiisc(|ucnt  warranty,  may  be  inipHed  from  the  C(;nduct  of  the 
seller  as  well  as  frinn  his  words,  and  may  also  result  from  the 
nature  and  circumstances  of  the  sale.**  But  it  was  formerly 
held  that  there  was  no  warranty  of  title  implied  in  the  mere  act 
of  sale.*"*  This  view  was  stronj^ly  su])iH)rted  in  the  opinion  in 
Morley  v.  Attenhorouj^h  "*  of  I'arkc,  B.,  who,  however,  recog- 
nized so  many  exceptions  to  the  rule,  founded  upon  declarations 
or  conduct  equivalent  to  warranty,  that,  as  Lord  Campbell 
said."**  the  exceptions  "well  mip;ht  eat  up  the  rule."  The  old 
rule  was  substantially  altered  in  18(i4  by  Eichholz  v.  Bannis- 
ter,*" ujjon  the  strength  of  the  opinion  of  the  judges  in  which 
case.  Benjamin,  after  reviewing  the  authorities,  argues  conclu- 
sively that  the  exceptions  have  become  the  rule,  and  that  the 
old  rule  has  dwindled  into  the  exceptions.  He  states  the  rule 
as  follows :  "A  sale  of  personal  chattels  implies  an  affirmation 
by  the  vendor  that  the  chattel  is  his,  and  therefore  he  warrants 
the  title,  unless  it  be  shown  by  the  facts  and  circumstances  of 
the  sale  that  the  vendor  did  not  intend  to  assert  ownership,  but 
imW  to  transfer  such  interest  as  he  might  have  in  the  chattel 
s..l("l.-^' 

Rule  ill  .hncn'ca. 

In  the  L'nited  States  a  distinction  between  goods  in  posses- 
sion of  the  seller  and  goods  not  in  possession  has  been  some- 
what upheld;  and  the  rule  has  been  said  to  be  that  as  to  goods 
in  possession  there  is  an  implied  warranty,  but  that  when  the 
goods  are  in  the  possession  of  a  third  person  there  is  no  war- 
ranty.^®    That  there  is  an  implied  warrant}  of  title  when  the 

82  Morloy  V.  Attenborouf;!).  ;i  Exch.  .'lOO.  iht  rarko.  B. 

«3  Noy.  Max.  v.  42;   Co.  I.itt.  KfJa. 

Cf.  T/Apostro  V.  I/Plaistrier.  cited  1  P.  Wins.  ."'.IS.  1  Vos.  Sr.  3.%2. 
Bunli.k.  Cas.  Sales,  678. 

"4  ;i  Kxch.  .")()0. 

85  Sims  V.  Marryat.  17  Q.  B.  2S1.  201.  20  Law  .T.  Q.  B.  4.>4. 

88  17  C.  B.  (X.  S.)  70S.  ."r4  Law  .T.  f.  P.  107).  Soo.  also.  Kilwanls 
V.  Poarsnn.  6  Timos  Law  R.  220.  Bnrdick's  Cns.  Sales.  ('.70. 

^"  Beiij.  Sales.  §  (;.3!».  This  rule  was  ai»i»riiv«'d  and  fnlltiwfd  l>y 
Stfjdieii.  .T..  in  Raphael  v.  Burt.  1  Cab.  &  El.  .TJ.'i. 

«>^2  Kent.  (Vmini.  478.  Tins  distinetion  was  niihold  by  I..ir.l  Holt 
in  Mnlina  v.  Stoimhton.  1  Salk.  210,  Ld.  Rayni.  .'!>.'!,  hut  n-pudiati-d 
by  BnliiT.  J.,  in  Pasjoy  v.  Freeman.  3  Tvnn  R.  51.  and  by  the  judp's 


244  CONDITIONS   AND   WARRANTIES.  (Ch.  7 

seller  is  in  possession  of  the  goods  is  universally  held,®"  the 
implication  resting  on  the  theory  that  possession  is  equivalent 
to  an  affirmation  of  title.""  But,  though  the  other  branch  of  the 
rule  has  been  frequently  approved  and  sometimes  applied."^ 
the  tendency  of  the  later  decisions  is  against  the  recognition 
of  such  a  distinction,  and  favorable  to  the  modern  English 
rule."-  Thus,  in  a  Massachusetts  case,"^  Dewey,  J.,  said : 
"Possession  here  must  be  taken  in  its  broadest  sense,  and  the 
excepted  cases  must  be  substantially  cases  of  sales  of  the  mere 
naked  interest  of  persons  having  no  possession,  actual  or  con- 
structive." And,  in  a  later  case  "*  in  the  same  court,  Morton, 
J.,  observed :  "If  the  vendor  has  either  actual  or  constructive 
possession,  and  sells  the  chattels,  and  not  merely  his  interest 
in  them,  such  sale  is  equivalent  to  an  affirmation  of  title," — a 
distinction  which,  as  Mr.  Corbin  observes,"^  differs  little  from 
that  established  in  Eichholz  v.  Bannister. 

Xo  Warranty  in  Oificial  Sales. 

The  circumstances  of  the  sale  or  the  agreement  may,  of 
course,  indicate  that  the  seller  is  transferring  merely  such  in - 

in  Morlcy  v.  Atteiiborough,  3  Exch.  500.  and  in  Eicbholz  v.  Bannister. 
17  C.  B.  (N.  S.)  708. 

89  Shattuck  V.  Green,  104  Mass.  42:  MaxHeld  v,  .Tones,  76  Me.  13.5. 
137;  Starr  v.  Anderson,  19  Conn.  338;  Sargent  v.  Currier.  49  X.  H. 
.311,  6  Am.  Rep.  .524;  CoUn  v.  Ammidown,  120  N.  Y.  308,  24  N.  E. 
044:  Could  v.  Bourgeois,  .51  N.  J.  Law,  361,  IS  Atl.  64;  Rice  v.  Forsyth, 
41  Md.  .•'.SO;  Williamson  v.  Sammous,  34  Ala.  601;  Morris  v.  Thomp- 
son. sr>  111.  16;  Marshall  v.  Duke.  51  Ind.  62;  Hunt  v.  Sackett,  31 
Mich.  IS;  Edgerton  v.  Michels,  66  Wis.  124,  26  X.  W.  748,  and  28 
X.  W.  408;  Davis  v.  Smith.  7  Minn.  414  (Gil.  328);  Gross  v.  Kierski, 
41  C-al.  Ill;  Croly  v.  Pollard,  71  Mich.  012,  39  X.  W.  853;  Close  v. 
Cro.ssland.  47  Minn.  .500,  50  X.  W.  604;  Jarrett  v.  Goodnow,  39  W. 
Va.  602.  20  S.  B.  575,  32  L.  R.  A.  321. 

»<>  Shattuck  V.  Green,  104  Mass.  42,  per  Morton,  J. 

91  Huntingdon  v.  Hall,  30  Me.  .501,  58  Am.  Dec.  765;  Scranton  v. 
Clark.  .39  X.  Y.  220,  100  Am.  Dec.  430;  Long  v.  Hickinglx.ttom,  28 
Miss.  773,  64  Am.  Dec.  118. 

02  Gould  V.  Bourgeois,  51  X.  J.  Law,  .361,  373,  18  Atl.  (>4.  per  Depue. 
.7.;  1  Smith,  Lead.  Cas.  (Edson's  Ed.)  ,344;  Cogar  v.  Lumber  Co..  46 
W,  Va.  2.56.  33  S.  E.  210.  The  cases  are  collected  in  Willist.  Cas. 
Sales.  602. 

»»  Whitney  v.  Heywood.  6  Cush.  (Mass.)  82,  86. 

"<  Shaltnck  v.  Green,  104  Mass.  42,  45. 

05  Ben1.  Sales  (Corhin's  Ed.)  §  962.  note  2L 


Jj  TC)  IMri.IFI)    WAKKANTY    OK   TITLE.  2tr» 

tc-rcst  as  he  may  liave,  and  iicj^Mlivc  the  iinplioatioii  of  a  war- 
ranty."" Sales  by  a  judicial  officer.  slicrilT,  executor  or  admin- 
istrator, mortjj^afj^ee,  or  auctioneer  fall  within  the  exception,  the 
circumstances  in  such  sales  being  such  as  to  indicate  that  the 
seller  sells  only  such  interest  as  he  may  have  in  the  goods.*' 

Xatitrc  of  irananty — Rciiialics  of  Buyer — Danuii^cs. 

The  implied  understanding  of  the  seller  that  he  has.  or  will 
have,  title  to  or  a  right  to  sell  the  goods,  is  usually  called  a 
"warranty."  The  performance  of  the  warranty,  however,  is 
clearly  a  condition  i)rece(lent  to  the  buyer's  obligation  to  ac- 
cept, and,  if  the  seller  tenders  goods  to  which  he  has  not  title, 
the  buyer  may  reject  them."*'  .\nd  if,  after  delivery  of  the 
goods,  it  turns  out  that  the  seller  had  not  title,  and  the  bu\er 
has  been  compelled  to  surrender  the  goods  to  a  superior  title, 
he  may  recover  the  price,  if  paid,  as  on  a  failure  of  considera- 
tion."" In  some  jurisdictions  he  may  also  elect  to  recover  un- 
licpiidated  damages  for  the  breach  of  warranty,'""  in  wdiich 
case,  upon  princi])le,  the  measure  of  damages  is  the  actual  loss ; 
that  is,  the  difference  between  the  value  of  the  goods  and  their 
value  had  the  title  been  as  warranted.''^'    In  other  jurisdictions, 


"0  (^louM  V.  P.ouriiiNtis,  ."1  N.  .T.  L.iw,  'Ml.  18  All.  t^:  TortiT  V. 
r.right.  82  Pa.  441. 

»•  Chapnian  v.  Spi-llor.  14  Q.  B.  <i'Jl.  10  Law  .1.  <J.  1'..  1^11;  Tlie 
-Monte  Allegro,  9  Wheat,  (l*.  S.)  (!1(!,  (j  L.  Ed.  174;  .Mookliee  v.  Canl- 
iier.  •_•  liar.  A:  <J.  (Mtl.l  IHJ:  Baker  v.  Arnot,  (i7  N.  Y.  44S;  Corwin 
V.  P.eiihain.  2  Ohio  St.  ."'.(J;  Biii^'liam  v.  Maxey.  1.')  111.  2l>r.:  Cohn  v. 
.Viiiniidowii.  120  N.  Y.  308,  24  N.  E.  t>44  ;  .Tolinsoii  v.  Layl)Ourn,  oO 
.Minn.  3:{2.  ."►7  N.  W.  ns"*.     Sef  Sales  Act,  §  V.i  (4). 

fs  Nevels  v.  Lumber  Co.,  108  Ky.  o.'A  .-)G  S.  W.  Of,!).  Such  is  the 
efTeet  of  Sale  of  Coocl.s  Act,  §  12  (1).  ealliiis;  the  undertaking'  a  "con- 
dition." 

Salt's  .\et.  §  l.S  (1).  calls  it  a  "warranty";  but  the  Ituyer  may  treat 
the  fuitiiluient  of  the  ol)lisatii)n  to  furnish  poods  as  descrilvod  and  as 
warraiitiHl  as  a  <-onditlon  of  !iis  obligation  to  accept.     Section  11. 

»»  Eichholz  V.  P.annister,  17  C  B.  N.  S.  708;  Wilkinson  v.  Ferree. 
24  Pa.  100. 

100  This  was  suggested  by  Benjamin,  although  there  appears  to  be 
no  English  de<'ision  in  point.  Benj.  Sales.  S  (J.SO.  The  Sale  of  Goods 
.\ct  so  provitles.  See  sections  11  (1)  (a),  5.'{  (1).  See,  also.  Sales  Act, 
SS  13  (1).  (•.!>  (1)  (h). 

101  Hoffman  v.  Chamberlain.  40  N.  J.  Eq.  00.3.  .">  Atl.  l.-.O,  .-.:{  Am. 
Pep.  7.S'!;    flrose  v.  Ilennessey,  13  Allen  (Mass.)  380;    Close  v.  Cross- 


246  CONDITIONS   AND    WARRANTIES.  (Ch.  7 

however,  following  the  rule  of  damages  for  breach  of  covenant 
of  title  to  real  property,  the  measure  of  damages  is  held  to  be 
the  consideration  paid,  with  interest. ^''- 

In  warranting  the  title  to  the  goods,  the  seller  warrants  that 
they  are  free  from  incumbrances.^"^ 

When  Action  for  Breach  Accrues. 

Whether  an  action  for  breach  of  warranty  of  title  will  He 
upon  mere  proof  that  a  superior  title  or  an  incumbrance  exists, 
or  whether  proof  of  eviction  or  of  interference  with  possession 
is  necessary,  is  a  question  on  which  the  decisions  conflict. 
Those  which  maintain  the  first  alternative  adopt  the  analogy  of 
covenants  of  right  to  convey  or  against  incumbrances/"*  while 


land,  47  Miim.  500,  50  N.  W.  694;    Hendrickson  v.  Back,  74  Minn. 
90,  76  X.  W.  1019. 

"Where  no  special  damages  are  set  forth,  the  measure  of  the  loss 
is  the  value  of  the  property  purchased;  and,  where  there  is  no  evi- 
dence of  value  but  the  consideration  paid,  that  will  be  taken  as  the 
standard  of  value.  Where  there  is  failure  of  title  in  part,  or  an  in- 
ferior title  is  sold,  the  loss  is  the  difference  between  the  property  as 
conveyed  and  its  value  had  the  title  been  as  warranted."  Hoffman 
V.  Chamberlain,  supra. 

102  See  Crittenden  v.  Posey,  1  Head.  (Tenn.)  .311;  Noel  v.  Wheatly, 
30  Miss.  181;  Goss  v.  Dysant,  31  Tex.  186;  Arthur  v.  Moss,  1  Or.  193. 

103  Close  V.  Crossland,  47  Minn.  500,  50  N.  W.  694;  Hall  v.  Aitkin, 
25  Neb.  360,  41  N.  W.  192;  Hodges  v.  Wilkinson,  111  N.  C.  56,  15  S. 
E.  941,  17  L.  R.  A.  545;  Mason  v.  Bohannan,  79  Ark.  435,  96  S.  W. 
181.  It  seems  that  there  is  no  English  decision  in  point.  Chalm. 
Sale  of  Goods  Act  (fith  Ed.)  31. 

Sale  of  Goods  Act,  §  12  (3),  so  provides,  and  this  is  followed  by 
Sales  Act,  §  13  (3).  Sale  of  Goods  Act,  §  12  (2).  also  provides  that 
there  is  an  implied  warranty  that  the  buyer  shall  have  and  enjoy 
quiet  possession  of  the  goods.  This  is  followed  by  Sales  Act,  §  13  (2), 
which  adds  the  words  "as  against  any  lawful  claims  existing  at  the 
time  of  the  sale."  For  a  discussion  of  the  effect  of  these  two  sub- 
sections, see  Benj.  Sales  (5th  Eng.  Ed.)  672-674.  where  the  editors 
snlmiit  "that  no  warranty  in  a  sale  of  goods  against  incumbrances 
or  for  quiet  j>ossession  was  part  of  the  common  law."' 

104  Grose  v.  Hennessey,  13  Allen  (Mass.)  389;  Perkins  v.  Whelan, 
110  Mass.  .542;  Pa.vne  v.  Rodden,  4  Bibb  (Ky.)  304.  7  Am.  Dec.  739; 
C:hancellor  v.  Wiggins.  4  E.  Mon.  (Ky.)  201.  .39  Am.  Dec.  499;  Matheny 
V.  .Mason.  73  Mo.  677,  39  Am.  Rep.  541;  Word  v.  Gavin,  1  Head 
(Tenn.)  506. 


§77)  I.Ml'LIKU    WAKKAMV    IN    SAI.K    BY    DKSCICIITION.  L' 1 7 

those  wliicli  maintain  the  other  alternative  adopt  the  analogy  of 
cMiM-naiUs  for  quiet  possession."** 


IMPLIED   WARRANTY    IN    SALE    BY    DESCRIPTION. 

77  Where  there  is  a  contract  to  sell  or  a  sale  of  ^oocls  by 
description,  tliere  is  an  implied  -warranty  (soiuctiuies 
called  an  implied  "condition")  that  the  (;oods  shall 
correspond  vrith  the  description;  and  if  the  contract 
or  sale  be  by  sample,  as  well  as  by  description,  it  ia 
not  sufficient  that  the  bulk  of  the  Koods  corresponds 
urith  the  sample,  if  the  goods  do  not  correspond  with 
the  description.! 08 

Rule  in  England. 

When  there  is  a  contract  to  sell  goods  by  description,  the 
fulfillment  by  the  seller  of  his  obligation  to  furnish  goods  as  de- 
scribed is  a  condition  precedent  to  the  obligation  of  the  seller 
to  perform  his  promise  to  accept  and  pay  for  the  goods.  If  the 
seller  fails  to  tender  goods  answering  the  description,  he  fails 
to  perform,  not  a  collateral  agreement  or  "warranty,"  if  the 
term  is  used  in  the  narrow  sense,  but  the  contract  itself.  This 
was  i)()inted  out  in  Chanter  v.  Hopkins  '""  by  Lord  .\binger, 
who  observed :  "A  good  deal  of  confusion  has  arisen  in  many 
of  the  cases  on  this  subject  from  the  unfortunate  use  made  of  the 
word  warranty.  Two  things  have  been  confounded  together. 
A  warranty  is  an  express  or  implied  statement  of  something 
which  the  party  undertakes  shall  be  part  of  a  contract,  and, 
though  part  of  the  contract,  yet  collateral  to  the  express  object 

105  WaiistT  V.  Messier,  29  N.  J.  Law,  250;  KruniMiiiar  v.  Hiivli.  S'J 
Ta.  42t;;  Linton  v.  Porter.  .31  111.  107;  Gross  v.  Klerski,  41  Cal.  Ill; 
Burt  V.  Dewey.  40  X.  Y.  2S;{.  100  Am.  Dec.  482 ;  O'Brien  v.  .Tones.  91 
N.  Y.  ir«;  Hodges  v.  Wilkinson.  Ill  N.  C.  56.  15  S.  K.  941,  17  L.  H.  A. 
.".45;  Close  v.  Crosslaiul,  47  .Minn.  5(X),  50  N.  W.  094;  Hull  v.  Caldwell. 
:{  S.  D.  451,  54  X.  W.  100;  Barnum  v.  Cochrane.  143  Cal.  042,  77 
I'ae.  050. 

In  an  action  for  the  price,  it  is  no  defense  that  the  title  was  in  a 
third  i>erson  at  the  time  of  the  sale,  while  the  defendant  holds  i)os- 
session.  .Johnson  v.  Oehmig.  95  Ala.  180.  10  South.  4;5(i.  'M  Am.  St. 
Hep.  204.    See.  also.  'Hie  Ele<-tron,  79  Fed.  089.  21  C.  C.  A.  12. 

100  See  Sales  Act.  §  14.     Cf.  Sale  of  Goods  Act,  §  13. 

107  4  Moes.  &  W.  399. 


248  CONDITIONS   AND   WARRANTIES.  (Ch.  7 

of  it.  But  in  many  of  the  cases  the  circumstance  of  a  party  sell- 
ing a  particular  thing  by  its  proper  description  has  been  called 
a  'warranty,'  and  the  breach  of  such  contract  a  'breach  of 
warranty' ;  but  it  would  be  better  to  distinguish  such  cases  as 
a  noncompliance  with  a  contract  wiiich  a  party  has  engaged  to 
fulfill :  as  if  a  man  offers  to  buy  peas  of  another,  and  he  sends 
him  beans,  he  does  not  perform  his  contract;  but  that  is  not  a 
warranty.  There  is  no  warranty  that  he  should  sell  him  peas. 
The  contract  is  to  sell  peas,  and,  if  he  sends  him  anything  else 
in  their  stead,  it  is  a  nonperformance  of  it."  But,  whatever 
tlie  confusion  in  terms,  the  law  is  clear :  If  the  sale  is  of  a  de- 
scribed article,  the  tender  of  an  article  answering  the  descrip- 
tion is  a  condition  precedent  to  the  buyer's  liability,  and,  if  the 
condition  is  not  performed,  the  buyer  is  entitled  to  reject  the 
article,  and,  if  he  has  paid  for  it,  to  recover  the  price  as  money 
had  and  received  for  his  use.^°^  And,  although  the  sale  is  by 
sample,  it  is  not  sufficient  that  the  bulk  corresponds  with  the 
sample  if  it  does  not  also  correspond  with  the  description.^'^" 
For  example,  where  the  sale  was  of  "foreign  refined  rape  oil, 
warranted  only  equal  to  sample,"  and  the  oil  corresponded  with 
the  sample,  but  the  jury  found  that  it  was  not  "foreign  refined 
rape  oil,"  it  was  held  that  the  buyer  was  not  bound  to  receive 
it.^" 

The  cases  of  sale  by  description  are  usually  cases  of  contracts 
to  sell  unascertained  goods  by  description ;  that  is,  goods  of  a 
certain  kind  or  class.  And,  indeed,  there  can  be  no  contract  to 
sell  unascertained  goods,  except  by  description.  There  may, 
however,  be  a  contract  to  sell  specific  goods  by  description ; 
for,  although  in  such  case  the  goods  are  identified,  it  may  be 
an  essential  term  of  the  contract,  either  express  or  implied,  that 


losjosling  V.  Kingsford,  32  Law  J.  C.  P.  94;  Mody  v.  Gregson, 
L.  R.  4  Exch.,  at  page  53;  Borrowmau  v.  Draytou,  2  Excb.  Div.  15; 
Wieler  V.  Scbilizzi,  17  C.  B.  619;  Benj.  Sales,  §  GOO. 

"If  the  description  of  the  article  tendered  is  different  in  any  re- 
spect, it  is  nut  the  article  bargained  for,  and  the  other  party  is  not 
bound  to  take  it."  Bowes  v.  Shand,  2  App.  Cas.  455,  per  Lord  Black- 
burn. 

100  Nichol  V.  Godts,  10  Excb.  191,  23  Law  J.  Excb.  314;  Azemar  v. 
Casella,  L.  R.  2  C.  P.  077. 

no  Nichol  V.  Godts,  10  Excb.  191,  23  Law  J.  Excb.  314. 


§  77)  I.MI'I.IKI*    WAintANTY    IN    SAI.K    HV    DF.SCIM  ITK  »N.  'Jl!> 

the  floods  shall  he  goods  of  a  certain  description."'  Tluis, 
where  there  was  a  contract  to  sell  turnip  seed  as  "Skirving's 
Swedes,"  it  was  held  that  it  was  a  sale  by  description  of  the 
article,  and  that  the  contract  was  not  satisfied  by  tender  of  any 
other  seed  than  "Skirvins^'s  Swedes."  *'-  .\n<l  in  a  recent 
case,"^  where  the  j)laintifF  contracted  to  sell  to  the  defendant 
a  reaping  machine,  which  the  seller  said  was  in  his  possession 
in  another  town,  and  which  he  said  had  been  new  the  previous 
year,  and  had  only  been  used  to  cut  ")(>  or  GO  acres,  but  the 
statements  about  the  machine  were  untrue,  and  the  defendant 
rejected  it.  it  was  held  that  the  statements  about  the  machine 
were  not  a  mere  collateral  warranty,  but  an  identification  of 
the  machine,  and  that  the  sale  was  by  description,  and  the  de- 
fendant was  justified  in  rejectincf  it.  Channell,  J.,  said:  "The 
term  'sale  of  goods  by  description'  must  apply  to  all  cases  where 
the  purchaser  has  not  seen  the  goods,  but  is  relying  on  the  de- 
scrii)tion  alone.  It  ajiplies  to  a  case  like  the  present,  where  the 
bu\  er  has  never  seen  the  article,  but  has  bought  by  description. 
In  that  case,  by  Sale  of  Goods  Act  1893,  §  13,  there  is  an  im- 
plied condition  that  the  goods  shall  correspond  with  the  de- 
scription, which  is  a  difTercnt  thing  from  a  warranty.  The 
most  usual  application  of  that  section,  no  doubt,  is  to  the  case 
of  unascertained  goods;  but  I  think  it  must  also  be  applied  to 
cases  such  as  this,  where  there  is  no  identification  otherwise 
than  by  description." 

m  Seo  KciiiUMl.v  v.  Mail  Co.,  L.  U.  '2  Q.  I?.  580,  r,ST. 

112  Allan  V.  Lake.  18  Q.  B.  5150. 

iisVarley  v.  Wliipi)  (UMJU)  1  Q.  B.  513.  Channell,  J.,  observes 
that  "the  ease  turns  on  a  fine  point,  namely,  whether  the  words 
used  ♦  ♦  *  wiTc  part  of  the  deseription,  or  merely  amounted  to 
a  collateral  warranty."  lie  illustrates:  "If  a  man  says  he  will  sell  tlie 
black  horse  in  the  last  stall  in  his  stable,  and  the  stall  is  empty.  «»r 
there  is  no  horse  in  it.  but  only  a  cow,  no  property  could  i)ass. 
Aj:ain.  If  he  says  he  will  sell  a  four-year  old  hors<>  in  the  last  stall, 
and  there  is  a  horse  in  the  stall,  but  he  is  not  a  four-.vear  old,  the 
property  woulil  not  pass.  But  if  he  says  he  will  sell  a  four-year 
old  horse,  and  there  is  a  four-year  old  horse  in  the  stall,  and  he 
says  that  the  horse  is  sound,  this  last  statement  would  only  be  a 
collateral  warranty."  Sit'  comments  on  this  ease  in  10  Ilarv.  Law 
Rev.  405:  Benj.  Sales  (5th  Eufj.  Ed.)  Gil  et  seq.  Under  the  prnpose«l 
American  Sales  Act.  §S  11,  14,  the  necessity  of  drawing  such  fine 
(liMtinctions  would  not  arise. 


2o0  CONDITIONS   AND   WARRANTIES.  (Cll.  7 

Ridc  in  United  States. 

In  the  United  States  the  cases  generally  declare  that  words 
of  description  imply  a  warranty  that  the  goods  shall  conform 
to  the  description.^^*  "There  is  no  doubt,"  says  Shaw,  C.  J., 
"that,  in  a  case  of  sale,  words  of  description  are  held  to  consti- 
tute a  warranty  that  the  articles  sold  are  of  the  species  and 
quality  so  described."  ^^^  Thus,  where  the  article  sold  was  de- 
scribed in  the  bill  of  parcels  as  "blue  paint,"  it  was  held  that 
this  amounted  to  a  warranty  that  the  article  should  be  blue 
paint,  and  not  a  different  article.^^^ 

It  seems,  however,  that  the  rule  of  law  differs  little,  if  at  all, 
from  that  prevailing  in  England;  for,  although  there  is,  as  we 
shall  see,  in  considering  the  buyer's  remedies,  some  disagree- 
ment as  to  his  remedy  for  breach  of  warranty  in  certain  cas- 
es,^ ^^  all  the  authorities  agree  that  he  may  decline  to  accept 
the  goods  if  they  fail  to  conform  to  the  description.^ ^^    The  law 

11*  Hastings  v.  Lovering,  2  Pick.  (Mass.)  214,  13  Am.  Dec.  420; 
Hensbaw  v.  Robins,  9  Mete.  (Mass.)  83.  43  Am.  Dec.  367;  Borrekins 
V.  Bevan,  3  RaMie  (Pa.)  23,  23  Am.  Dec.  85;  Holloway  v.  Jacoby,  120 
Pa.  583.  lo  Atl.  487,  6  Am.  St.  Rep.  737;  Osgood  v.  Lewis,  2  Har. 
&  G.  (Md.)  495,  18  Am.  Dec.  317;  Hawkins  v.  Pemberton.  51  X.  Y. 
198,  10  Am.  Rep.  595:  Wbite  v.  Miller,  71  N.  Y.  118,  27  Am.  Rep.  13; 
I^wis  V.  Rountree,  78  N.  C.  323 ;  Whitaker  v.  McCormiek,  6  Mo.  App. 
114;  Flint  v.  Lyon,  4  Cal.  17;  Morse  v.  Stockyard  Co.,  21  Or.  289, 
28  Pac.  2,  14  L.  R.  A.  157;  Miller  v.  Moore,  83  Ga.  6S4,  10  S.  E.  360. 
6  L.  R.  A.  374,  20  Am.  St.  Rep.  329;  Xortbwestern  Cordage  Co.  v. 
Rice,  5  X.  D.  432,  07  X.  W.  298,  57  Am.  St.  Rep.  563:  Edgar  v. 
.Joseph  Breck  &  Sons  Corp.,  172  Mass.  ,581.  52  X.  E.  1083;  Hoffman 
V.  Dixon,  105  Wis.  315,  81  X.  W.  491,  76  Am.  St.  Rep.  916;  Timken 
Carriage  Co.  v.  C.  S.  Smith  &  Co.,  123  Iowa,  554,  99  X.  W.  183. 

iioHogins  V.  Plympton,  11  Pick.  (Mass.)  97,  99;  Winsor  v.  Lom- 
bard, 18  Pick.  (Mass.)  57,  60. 

lie  Borrekins  v.  Bevan,  3  Rawle  (Pa.)  23,  23  Am.  Dec.  85. 

11 T  Post,  p.  368. 

118  Pope  V.  Allis,  115  U.  S.  .3fi3,  371,  6  Sup.  Ct.  69,  29  L.  Ed.  .393. 
See.  also.  Xorrington  v.  Wright,  115  U.  S.  188,  203,  6  Sup.  Ct.  12,  29 
ly.  Ed.  366,  i)or  (Jray.  .L ;  P^illey  v.  Pope.  115  IT.  S.  213.  6  Sup.  Ct. 
10.  29  L.  Ed.  372;  Avery  v.  Miller,  118  Mass.  .500;  Dailey  v.  Green, 
15  Pa.  118;  Woodle  v.  Whitney,  23  Wis.  55,  99  Am.  Dec.  102;  Wol- 
cott  V.  Mount.  .36  X.  .7.  Law,  2(J2,  13  Am.  Rep.  4.38  (pointing  out  that 
if  the  buyer  has  accepted  part  performance  the  buyer  may  treat  the 
iireach  of  condition  as  a  breach  of  warranty);  Haase  v.  Xounemach- 
.•r.  21  Minn.  486.  490,  per  Gilfillan,  C.  .L;  .Tones  v.  George,  61  Tex. 
."'.45.  .349,  48  Am.  Rep.  280;  Bagley  v.  Rolling  Mill  Co.  (C.  C.)  21  Fed. 


§  77)  I. M  I'M  HI)    WAKKANTY    IN    SAI.i;    15V    I)K>(  UI  I'l  KJ.N.  2.'l 

is  clearly  stated  in  Pope  v.  AUis,""  a  recent  case  in  the  Sii- 
])reme  Court  of  the  L'nitcd  States.  The  |)oint  decided  was  that 
the  Iniyer  could  recover  the  price  of  iron  paid  for  before  deliv- 
ery, and  rejected  after  inspection,  for  failure  to  conform  to  the 
grade  re(|uired  hy  the  c<jntract.  Woods,  J.,  said:  "When  the 
subject-matter  of  a  sale  is  not  in  existence,  or  not  ascertained 
at  the  time  of  the  contract,  an  un<lerstandiM<^  that  it  shall,  when 
existing  or  ascertained,  possess  certain  qualities,  is  not  a  mere 
warranty,  but  a  condition  ;  the  performance  of  which  is  preced- 
ent to  any  obligation  upon  the  vendee  under  the  contract." 

So  also,  where  specific  goods  are  sold  by  description,  when 
the  goods  are  not  open  to  inspection  or  their  failure  to  comply 
with  the  description  is  not  discoverable  by  inspection,  a  war- 
rant} is  implied  that  the  goods  are  of  the  kind  described,  as 
where  the  buyer  asks  for  goods  of  a  particular  kind,  and  the 
seller  furnishes  goods  purporting  to  answer  the  description.'-'' 
In  such  case,  if  the  goods  fail  to  conform  to  the  description, 
the  buyer  may  reject  them.^^^ 

ir.'.>,  lti2;  Morse  v.  Moore.  S.S  Mo.  473.  470.  22  Atl.  302.  1.3  T-.  R.  A.  224, 
2.'!  Am.  St.  Hep-  783;  Columbian  Iron  Works  &  Dry  Doek  Co.  v. 
Douglas.  S4  M(l.  44.  34  Atl.  1118,  33  L.  K.  A.  103.  57  Am.  St  Rep. 
3t;2;  ruritiin  Mfg.  Co.  v.  "Westermire.  47  Or.  ~>Tu.  84  Pae.  7'.>7.  See. 
also.  Wac'ber  v.  Talbot,  1157  N.  Y.  48,  m  N.  i:.  288,  82  Am.  St. 
Rep.   712. 

ii»113  U.  S.  30.3,  371,  G  Sup.  Ct.  (K».  20  L.  Ed.  30:',. 

i20Wok-ott  V.  Mount,  30  N.  J.  Law.  202,  13  Am.  Rep-  ^•'^  (strap- 
leaf  red-to|t  turnip  set-dt;  White  v.  Miller,  71  X.  Y.  118,  27  Am.  Rep. 
13  (large  Bristol  cabbage  see<l);  Van  Wyek  v.  Allen.  GO  N.  Y.  61,  2.". 
Am.  Rep.  130;  Jones  v.  George.  01  Te.\.  .34.'>.  48  Am.  Rep.  280  (Paris 
green,  not  chrome  greent;  IlotTman  v.  Di.xon.  10.">  Wis.  ."il."».  81  N.  W. 
401.  70  Am.  St.  Rep.  010  ("rape  seed,"  not  wild  mustard  seedi. 

In  Chandelor  v.  Lopus,  Cro.  .Tac.  4,  where  a  goldsmith  sold  n 
stone  which  he  afhrmed  to  be  a  bezoar  stone,  it  was  held  that  "the 
hare  affirmation  that  It  was  a  l>ezoiir  stone,  without  warranting  it. 
Is  no  cause  of  action."  This  was  followed  in  New  York  in  Seixas 
V.  Wood.  2  Caines.  48.  2  Am.  Dec.  21.".,  and  Swett  v.  Colgate.  20  Johns. 
IIK).  11  Am.  Dec.  20r( ;  but  these  casi's  on  that  point  have  been  practi- 
(•ally  overruled.  Hawkins  v.  I'endierton.  .11  N.  Y.  108.  10  Am.  Rep. 
.■•O.'i;    White  v.  Miller,  supra. 

121  Hawkins  v.  I'endierton.  ."il  N.  Y.  lOS.  lo  Am.  Rep.  .'O.'i  (li.'irrels 
of  what  was  sold  as  "blue  vitriol."  containing  2."!  per  ceiU.  of  blue 
vitriol,  and  7.">  of  green  vitrioli;  Fogg's  A(hn"r  v.  Rodgers.  84  Ky.  .".'i.'^, 
2   S.    W.   24.S   (stacks,   sold   as   "hemp,"    ctimposinl   largely   of   weeds). 


252  CONDITIONS   AND   WARRANTIES.  (Ch.  7 

The  proposed  Sales  Act  provides :  "Where  there  is  a  contract 
to  sell  or  a  sale  of  goods  by  description,  there  is  an  implied 
warranty  that  the  goods  shall  correspond  with  the  descrip- 
tion." ^^-  As  a  breach  of  the  warranty,  under  the  act,  justifies 
rejection  of  the  goods,  and  also  an  action  for  damages,  the  ef- 
fect is  the  same  as  under  the  English  act,  where  the  term  ''con- 
dition" is  used/^^ 


IMPLIED  WARRANTIES  OF  QUALITY. 

78.  Subject  to  the  exceptions  hereinafter  mentioned,  there 
is  at  common  la^v  no  implied  ^varranty  or  condition 
as  to  the  quality  or  fitness  for  any  particular  purpose 
of  goods  supplied  under  a  contract  to  sell  or  a  sale. 

EXCEPTIONS— (1)  W^here  the  buyer,  expressly  or  by  impli- 
cation, makes  knoivn  to  the  seller  the  particular  pur- 
pose for  w^hich  the  goods  are  required,  and  it  appears 
that  the  buyer  relies  on  the  seller's  skill  and  judg- 
ment, and  the  goods  are  of  a  description  w^hich  it  is 
in  the  course  of  the  seller's  business  to  supply  (xirheth- 
er  he  be  the  growrer  or  manufacturer  or  not),  there  is 
an  implied  ivarranty,  sometimes  called  a  "condition," 
that  the  goods  shall  be  reasonably  fit  for  such  pur- 
pose.i  -^ 

(2)  Where  goods  are  bought  by  description  from  a  seller  ivho 

deals  in  goods  of  that  description  (\«rhether  he  be  the 
gro\irer  or  manufacturer  or  not),  and  the  buyer  has 
no  opportunity  to  examine  them,  there  is  an  implied 
■warranty,  sometimes  called  a  "condition,"  that  the 
goods  shall  be  of  merchantable  quality.i-  • 

(3)  On  a  sale   of   provisions,   it   is    held  in   some   states   that 

there  is  an  implied  warranty  that  they  are  fit  for  con- 
sumption; but  in  most  states  the  rule  is  confined  to 
sales  by  dealers  for  immediate  consumption  by  the 
buyer. 

122  Section  14.  This  section,  following  the  English  Act  (section  1.3). 
also  provides :  "And  if  the  contract  or  sale  be  by  sample,  as  well 
as  by  desf-ription,  it  is  not  sufficient  that  the  bulk  of  the  goorls  corres- 
Iioiids  with  the  sample  if  the  goods  do  not  correspond  with  the  de- 
Kcrii>tion." 

123  Ante,  p.  231. 

124  See  Sales  Act.  §  W  (1).  As  to  the  effect  of  the  words  in  paren- 
thesis, post.  p.  258. 

125  See  Sales  Act,  §  l.^>  (2). 


.§  78)  mil  ii.i)  \VAia:.\NTir.s  of  quamty.  2."):? 

drtcat  Emptor. 

The  inaxiin  of  the  coiiinioii  law,  "caveat  emptor,"  is  the  }:jcn- 
eral  rule,  so  far  as  quahty  is  concerned,  applicable  to  sales. 
The  buyer,  in  the  absence  of  fraud,  purchases  at  his  own  risk, 
unless  the  seller  has  ji^iven  an  express  warranty,  or  unless  a 
warranty  be  implied  from  the  nature  and  circumstances  of  the 
sale.'-"  The  rule  of  caveat  emptor  probably  had  its  orip:in  in 
the  fact  that  in  early  times  nearly  all  sales  of  goods  took  place 
in  market  overt.'-'  The  tendency  of  modern  cases  is  to  dimin- 
ish its  scope  by  implyinj.::-  warranties  in  certain  cases,  where  the 
circumstances  indicate  that  such  was  the  intention  of  the  par- 
ties. 

U'hcllicr  Warranty  may  be  Implied  from  Usuij^e. 

Henjamin  says  that  an  implied  warranty  may  result  from 
usage,*-**  but  this  statement  is  somewhat  misleading.  He  cites 
Jones  V.  Ijowtlen.'-"  an  action  of  deceit,  in  which  it  appeared 
that  in  auction  sales  of  certain  drugs,  as  pimento,  it  was  usual 
to  state  in  the  broker's  catalogue  whether  they  were  sea  dam- 
aged ;  and  upon  the  evidence  of  the  usage,  and  of  the  absence 
in  t|ie  sale  in  question  of  a  statement  that  they  were  sea  dam- 
aged, it  was  held  that  the  buyer  could  maintain  an  action  for 
fraud.  As  the  writer  elsewhere  observes,''"'  the  grounds  are 
not  very  intelligently  given,  but  it  may  be  fairly  inferred  from 
the  language  of  ^lansfield.  C.  J.,  that  he  considered  the  verdict 
as  establishing  a  usage  which  imjwsed  on  the  seller  the  duty  of 
disclosing  the  defect;  thus  bringing  the  case  within  the  principle 
that  the  suppression  of  that  which  is  true,  and  which  it  is  the 
duty  of  the  seller  to  make  known,  constitutes  fraud. 

As  observed  by  Davis.  J.,  in  the  leading  case  of  Barnard  v. 
Kellogg.'-"   in  the   Supreme  Court  of  the  United  States,  the 

i2«Millor  V.  Tiffany,  1  Wall.  (T\  S.)  2n,S.  17  L.  Ed.  'AO;  naniard 
V.  Kfllot,'^'.  10  Wall.  (!'.  S.)  :\f<i.  II)  L.  Ed.  ns7;  Winsor  v.  Loinlianl. 
IS  rii'k.  (Mass.)  .'i7;  IlarRous  v.  Stono.  ."»  N.  Y.  73;  Moore  v.  ^IcKin- 
lay.  5  Cal.  471:  (Jaffo  v.  Carpoutcr,  107  Fed.  S-SC,.  47  C  C.  A.  .*«).  Soe, 
also,  oases  cited  i>ost.  notr  140. 

1'-:-  Morley  v.  Attcnhorou;,'!!,  .3  I-iccli.,  at  pa;:e  ."11.  [ler  I'arke.  B. 

128  Bonj.  Sales,  §  0."., 

i-»4  Taunt.  S47.     Tf.  Sycrs  v.  .Toiias.  2  Exch.  111. 

>^"  Rcnj.  Sales,  §  4R<>. 

131  10  Vvall.  (U.  S.)  .-{S.-!.  lit  Tj.  Ed.  !)S7. 


254  COXDITIOXS   AND   WARRANTIES.  (Ch.  7 

proper  office  of  a  custom  or  usage  in  trade  is  to  ascertain  and 
explain  the  meaning  and  intention  of  the  parties  to  a  contract, 
whether  written  or  in  parol,  which  could  not  be  done  without 
the  aid  of  this  extrinsic  evidence ;  but  it  does  not  go  beyond 
this,  and  is  used  on  the  theory  that  the  parties  knew  of  its  ex- 
istence, and  contracted  with  reference  to  it.  But  evidence  of  a 
usage  to  imply  a  warranty  where  none  is  implied  by  the  com- 
mon law,^^^  or  evidence  of  a  usage  against  a  warranty  where 
a  warranty  is  implied  by  law,^^'  is  inadmissible.  Custom  can- 
not be  admitted  to  control  the  general  rules  of  the  law.  Thus 
in  Barnard  v.  Kellogg,^^*  where  the  buyer  purchased  in  Boston 
certain  wool,  after  having  examined  four  bales  and  declined  to 
examine  the  rest,  and  it  turned  out  that  some  of  the  bales,  un- 
known to  the  seller,  were  falsely  packed,  it  was  held  that  the 
seller  was  not  bound  by  warranty  against  false  packing,  which 
by  the  custom  of  dealers  in  wool  in  New  York  and  Boston  was 
implied  from  the  fact  of  sale.  Davis,  J.,  said  :  "The  usage  was 
inconsistent  with  the  contract  which  the  parties  chose  to  make 
for  themselves,  and  contrary  to  the  wise  rule  of  law  governing 
the  sale  of  personal  property."  In  concluding,  he  remarked 
that  it  was  proper  to  add  that  the  parties  did  not  know  of  the 
custom,  and  could  not,  therefore,  have  dealt  with  reference  to 
it.  Whether  the  result  would  have  been  dififerent  if  the  custom 
had  been  known  to  the  parties  the  opinion  does  not  intimate  ; 
but  it  seems  that  something  more  than  mere  knowledge  of  the 
custom  would  be  necessary  to  show  that  they  intended  to  make 
it  a  term  of  the  contract. 

The  proposed  Sales  Act.^-''^  following  the  English  Sale  of 
Goods  Act,^'®  provides:  "An  implied  warranty  or  condition  as 
to  quality  or  fitness  for  a  particular  purpose  may  be  annexed 
by  usage  of  trade." 

182  Barnard  v.  Kellogg.  10  Wall.  383,  19  L.  Ed.  987;  Dickinson 
V.  Gay,  7  Allen  (Mass.)  29,  83  .\in.  Dec.  6o6 ;  Dodd  v.  Farlow,  11 
Allen  (Mass.)  420,  87  Am.  Dec.  726;  Snelling  v.  Hall,  107  Mass.  134. 
See,  also.  Coxe  v.  Heisley,  19  Pa.  243;  Wetlierill  v.  Neilson,  20  Pa.  448, 
54  Am.  Dec.  741. 

183  Wliitniore  v.  Iron  Co.,  2  Allen  (Mass.)  52. 
13^  10  Wall.  38.3,  19  L.  Ed.  987. 

135  Section  15  (.5). 
130  Section  14  (3). 


§78)  nin.ir.n  wakt^vntiks  or  grAi.iTY.  2't'i 

Siili'  of  Sf<i-iifli  Chill  Id. 

So  far  as  concerns  the  sale  of  ascertained  jj;<i<:)(ls,  which  the 
hnyer  has  inspected  or  has  had  an  opportunity  of  inspecting, 
and  of  which  the  seller  is  not  the  manufacturer  or  grower,  the 
rule  caveat  emptor  admits  of  no  exceptions  hy  implied  war- 
ranty of  quality.'-''  Benjamin  states  the  rule  without  any  qual- 
ification in  respect  to  goods  of  which  the  seller  is  the  manu- 
facturer or  grower,*'"  but  this  qualification  occurs  generally  in 
the  statement  of  the  rule  in  this  country,*'®  and  it  has  some- 
times been  held  that  in  such  sales  there  is  an  implied  warranty 
that  the  goods  are  free  from  latent  defects  resulting  from  the 
process  of  manufacture  or  cultivation  which  would  render  them 
unfit  for  the  use  for  which  they  were  designed.'**^  In  the  rule 
of  caveat  emptor  there  is  no  hardship,  for,  if  the  bu\cr  mistrusts 

137  I'jirkinsou  v.  Lee,  2  East,  314;  Chanter  v.  Hopkins,  4  Mees. 
&  W.  ;ili<);  Haniard  v.  Kelloiu'?;,  10  Wall.  (f.  S.)  3S3,  19  L.  Kd.  1>ST ; 
Salisliury  v.  Staincr,  V.)  Wend.  (N.  Y.)  ir.O,  .T2  Aui.  D('<'.  437;  Ilipht 
v.  Hacon.  ILNJ  .Mass.  10.  30  Am.  Rep.  (>30 ;  Welmer  v.  Cloinont,  37 
I'a.  147.  78  Am.  Doc.  411  :  Sollors  v.  Stevenson,  1G3  Pa.  201'.  20  Atl. 
7ir>:  Rice  V.  Forsyth,  41  >fd.  3S0 ;  Burnett  v.  Stanton.  2  Ala.  VX>: 
Kohl  V.  LindU'y,  30  111.  lO.".,  89  Am.  Doe.  294;  Burnett  v.  Ilensloy, 
lis  Iowa,  .")7r..  02  N.  W.  G78;  Tolluride  Bower  Transmission  Co.  v. 
Crane  Co.,  20.S  111.  218.  70  X.  E.  310;  National  Oil  Co.  v.  Rankin.  08 
Kan.  070.  7;")  Bac.  1013;  National  Cotton  Co.  v.  Younp.  74  .\rk. 
144.  8.")  S.  W.  02.  100  Am.  St.  Kcp-  "l-  'Hie  rule  of  caveat  emptor 
is  probably  universal  in  the  United  States,  o.vcept  In  South  Carolina 
(Barnard  v.  Yates,  1  Nott  &  McK'..  142),  and  Tx)uisiana  (Mclx'llan  v. 
Williams,  11   I^.  Ann.  721). 

118  BeuJ.  Sales,  §  644. 

139  Barnard  v.  Kellopfr.  10  Wall.  (C.  S.)  .38;},  10  L.  Ed.  !is7.  :md 
oases  oite<l  in  note  137.  See,  also,  Jones  v.  .Just.  L.  R.  :'.  (}.  I'..  107. 
per  Mel  lor.  J. 

Ko  KeIlr)KK  Bridge  Co.  v.  Hamilton,  110  U.  S.  108.  3  Sup.  Ct.  537, 
28  L.  Ed.  8G.  See.  also.  Hoe  v.  Sanborn.  21  N.  Y.  .")2.  78  Am.  Dec. 
103;  Beers  v.  Williams.  10  Til.  00;  White  v.  Miller.  71  N.  Y.  118, 
27  Am.  Rep.  13  (latent  defects  in  seeds  arising  from  Improper  culti- 
vation); Landreth  v.  Wyckoff.  07  App.  IMv.  14."i.  73  N.  Y.  Snpp.  .388; 
Prentice  v.  Fargo,  .")3  App.  Div.  (">0S.  (m  N.  \.  Snpp.  1114.  aflirmcd 
173  N.  Y.  ."»0:!.  G.">  N.  E.  1121;  post,  p.  259.  Where  the  buyer  bouuht 
a  bull  for  breeding  purposes  to  the  knowledge  of  the  seller,  paying 
full  price,  and  the  bull  proved  impotent,  no  warranty  was  impliwl. 
McQuaid  v.  Ross.  85  Wis.  492,  55  N.  W.  705,  22  L.  R.  A.  187.  39 
Am.  St.  Rep.  864. 


256  CONDITIONS    AND   WARRANTIES.  (Ch.  7 

his  judgment,  he  can  require  of  the  seller  a  warranty.  If  he 
inspects  or  declines  to  do  so,  and  is  satisfied  without  a  war- 
ranty, he  takes  upon  himself  the  risk  of  the  goods  being  un- 
merchantable, or  otherwise  failing  to  possess  the  qualities  which 
he  desires. 

It  must  be  borne  in  mind,  however,  that  if  specific  goods  are 
sold  by  description,  even  though  the  buyer  has  an  opportunity 
for  examination,  ii  the  failure  to  comply  with  the  description 
is  not  discoverable  by  examination,  a  warranty  that  they  shall 
correspond  with  the  description  is  implied. ^*^ 

Warranty  of  Fitness  for  Purpose. 

Where  a  buyer  orders  an  article  for  a  particular  purpose, 
which  he,  expressly  or  by  implication,  makes  known  to  the  sell- 
er,^*- and  the  article  is  of  the  kind  manufactured  by  the  seller 
or  in  which  he  deals,  and  the  buyer  relies  on  the  judgment  or 
skill  of  the  seller  to  furnish  a  suitable  article,  an  implied  war- 

141  Ante,  p.  251.  It  would  seem,  however,  that  where  the  sale 
•is  by  description,  but  the  buyer  inspects  and  accepts  the  specific 
article  sold,  the  undertaking  of  the  seller  arising  from  the  descrip- 
tion is  an  express  warranty,  such  as  results  from  any  affirmation 
of  fact  the  natural  tendency  of  which  is  to  induce  the  sale,  and  on 
which  the  buyer  relies.  It  would  then  be  a  question  for  the  jury 
Avhether  the  description  was  intended  by  the  parties  as  a  warranty. 
Thus  where  the  buyer,  after  e.\:amination,  bought  what  the  aucv 
tioneer  erroneously  stated  to  be  blue  vitriol,  it  was  held  that  it  was 
a  question  for  the  jury  whether  the  representation  at  the  sale 
amounted  to  a  warranty.  Hawkins  v.  Pemberton,  51  X.  Y.  198,  10 
Am.  I'iop.  5!)o.  See  Wolcott  v.  Mount,  36  N.  J.  Law,  2(i2.  13  Am. 
Rep.  438;  Hoffman  v.  Dixon,  105  Wis.  315,  81  N.  W.  491,  76  Am. 
St.  Rep.  916. 

142  The  purpose  "may  be  gathered  from  the  counse  pursued  by 
the  parties,  and  from  their  conduct  and  acts  and  writings  ante- 
cedent. ])ut  leading  up,  to  the  contract  itself."  Gillespie  v.  Cheney 
nSfMW  2  Q.  B.  59.  S(  ■•.  also.  Reals  v.  Olmstead,  24  Vt.  114,  58  Am. 
Dec.  1.50. 

The  purpose  may  appear  from  the  description  of  the  article  de- 
sired. Preist  V.  Last  (190:])  1  K.  B.  148  ("hot  water  bottle") ;  Little 
V.  G.  E.  Von  Syckle  &  Co.,  115  Mich.  480,  73  N.  W.  554  (piano). 

Where  the  article  is  one  which  may  be  applied  to  various  pur- 
ixjses,  the  buyer  must  particularize  the  particular  purpose.  Jones 
v.  Padgett,  24  Q.  B.  Div.  650;  Hight  v.  Bacon,  126  Mass.  10,  30 
\m.  Rep.  639. 


§  78)  IMPLIED   WAUKANTIES   OF  QDALITT.  257 

ranty  arises  that  the  article  shall  be  reasonably  fit  for  such  pur- 
pose'^^  "Where  a  manufacturer  or  a  dealer,"  it  was  said  in  a 
leading  case/**  "contracts  to  supply  an  article  which  he  manu- 
factures or  produces,  or  in  which  he  deals,  to  be  applied  to  a 
particular  purpose,  so  that  the  buyer  necessarily  trusts  to  the 
judgment  or  skill  of  the  manufacturer  or  dealer,  there  is  in 
that  case  an  implied  term  or  warranty  that  it  shall  be  reason- 
ably fit  for  the  purpose  to  which  it  was  to  be  applied.  In  such 
case  the  buyer  trusts  to  the  manufacturer  or  dealer,  and  relics 
upon  his  judgment,  and  not  upon  his  own."  The  rule  rests 
upon  the  ground  that  the  buyer  trusts  to  the  seller  to  supply  a 
suitable  article,  and  not  to  his  own  inspection  or  instructions 
as  to  its  character.^*"  Therefore,  if  the  Imyer  orders  a  specific 
article,  or  a  known,  described,  or  defined  article,  although  he 

i< 8  Jones  V.  Bright.  5  Bing.  533;  Jones  v.  Just,  L.  R.  3  Q.  B.  107, 
203.  37  Law  J.  Q.  B,  89;  Randall  v.  Newsou,  2  Q.  B.  Dlv.  102;  Kel- 
lo£?g  Hridge  Co.  v.  Hamilton,  110  U.  S.  108,  3  Sup.  Ct.  537.  28  L.  Ed. 
SC;  Harris  v.  Walte,  51  Vt  480,  31  Am.  Rep.  094;  Byers  v.  Chapln, 
28  Uhio  St.  300;  Gerst  v.  Jones,  32  Grat.  (Va.)  518;  Morrill  v. 
Niixhtingale,  .'',9  Wis.  247;  Broen  v.  Moran,  51  Minn.  525.  53  N.  W. 
7r).-.;  West  Michigan  Furniture  Co.  v.  Glue  Co.,  127  Mich.  051,  87 
X.  W.  92;  Alpha  Check-Rower  Co.  v.  Bradley,  105  Iowa.  537,  75 
N.  W.  3G9;  Fitzniaurice  v.  Putorhaugh,  17  Ind.  App.  318,  45  N.  E. 
524;  Cleveland  Linseed  Oil  Co.  v.  A.  F.  Buchanan  &  Sous.  120  Fed. 
900.  57  C.  C.  A.  498;  Bell  v.  Mills,  78  App.  Div.  42.  SO  N.  Y.  Supp. 
34;  Queen  City  Glass  Co.  v.  Clay  Pot  Co..  97  Md.  420,  55  Atl.  447; 
Cleveland  Linseed  Oil  Co.  v.  A.  F.  Buchanan  &  Sons,  120  Fed.  90G, 
57  C.  C.  A.  498:    Lenz  v.  Blake-McFall  Co.,  44  Or.  509.  70  Pac.  350. 

Whore  a  producer  and  dealer  in  horses  for  breeding  purposes  sold 
a  horse  to  one  whom  he  knew  desired  a  horse  for  such  purpose, 
there  was  an  implied  warranty  that  It  was  reasonably  fit  therefor. 
Merchants'  &  Mechanics'  Sav.  Bank  v.  Fraze,  9  Ind.  App.  101,  30 
N.  E.  378.  53  Am.  St.  Rep.  341. 

i<*  Jones  V.  Just,  supra,  per  Mellor.  J. 

i<8  Dodge  V.  Manufacturing  Co..  113  Fed.  218.  51  C.  C.  A.  175; 
Gardner  v.  T.  J.  Winter  &  Co..  117  Ky.  382.  78  S.  W.  143,  03  L.  R, 
A.  047;  H.  H.  Franklin  Mfg.  Co.  v.  Manufacturing  Co.,  189  Mass. 
344,  75  X.  E.  024;  Troy  Grocery  Co.  v.  Potter  &  Wrlghtlngton,  139 
Ala.  359,  30  South.  12. 

If  the  seller  disclaims  knowledge  of  the  article  or  its  fitness,  the 
buyer  does  not  rely  on  his  judgment  and  skill.  Englehardt  v.  Clan- 
ton,  83  Ala.  330,  3  South.  080;  Gage  v.  Carpenter,  107  Fed.  SS6, 
47  C.  C.  A.  39. 

Tiff.Sale8(2d  Ed.) — 17 


258  CONDITIONS  AND  WARRANTIES.  (Ch.  7 

informs  the  seller  that  he  wants  it  for  a  particular  purpose, 
there  is  no  implied  warranty.^** 

The  rule  is  generally  held  to  apply  to  dealers  as  well  as  to 
manufacturers;  ^*^  but  some  courts  confine  it  to  manufacturers 

i<8  Chanter  v.  Hopkins,  4  Mees.  &  W.  399;  Ollivant  v.  Bayley,  5 
Q.  B.  2S8;  Seitz  v.  Refrigerating  Co.,  141  U.  S.  510,  12  Sup.  Ct.  46, 
35  L.  Ed.  837;  Dounce  v.  Dow,  64  N.  Y.  411;  Port  Carbon  Iron  Co. 
V.  Groves,  68  Pa.  149;  Mason  v.  Cliappell,  15  Grat.  (Va.)  572; 
Tliompson  v.  Libby,  35  Minn.  443,  29  N.  W.  150;  Goulds  v.  Brophy, 
42  jNIinn.  109,  43  N.  W.  834,  6  L.  R.  A.  392;  McCray  Refrigerator 
&  C.  S.  Co.  V.  Woods,  99  Mich.  269,  58  N.  W.  320,  41  Am.  St.  Rep. 
599;  Milwauliee  Boiler  Co.  v.  Duncan,  87  Wis.  120,  58  N.  W.  232, 
41  Am.  St  Rep.  33;  Frederick  Mfg.  Co.  v.  Devlin,  127  Fed.  71, 
62  C.  C.  A.  53;  Peoria  Grape  Sugar  Co.  v.  Tumey,  175  111.  631, 
51  N.  C-  587;  Day  v.  Construction  Co.,  174  Mass.  412,  54  N.  E. 
878;  Gregg  v.  Belting  Co.,  69  N.  H.  247,  46  Atl.  26;  Ivans  v.  Laury, 
67  N.  J.  Law,  153,  50  Atl.  355;  Davis  Calyx  Drill  Co.  v.  :Mallory, 
137  Fed.  332,  69  C.  C.  A.  662,  69  L.  R.  A.  973;  American  Home  Sav. 
Bank  Co.  v.  Trust  Co.,  210  Pa.  320,  59  Atl.  320;  Beggs  v.  Brewing 
Co.,  27  R.  I.  385,  62  Atl.  373;  McCormick  Lumber  Co.  v.  Winons, 
126  Wis.  649,  105  N.  W.  945;  Cleveland  Ptmch  &  Shear  Works,  v. 
Carbon  Co.,  75  Ohio  St  153,  78  N.  E.  1009.  Otherwise  where  the 
seller  expressly  warrants  fitness,  upon  specifications  of  his  own. 
Iroquois  Furnace  Co.  v.  Manufacturing  Co.,  181  111.  582.  54  N.  E.  987. 
There  is  no  implied  warranty  that  bricks  to  be  furnished  of  a  spec- 
ified grade,  and  of  good  quality  equal  to  sample,  shall  be  fit  for  their 
purpose,  though  the  seller  have  notice  of  it.  Wisconsin  Red  Press- 
ed Brick  Co.  v.  Hood,  54  Minn.  543,  56  N.  W.  165;  Id.,  60  Minn. 
401,  62  N.  W.  550.  51  Am.  St.  Rep.  539;  Id.,  67  Minn.  329,  69  N.  W. 
1091,  64  Am.  St.  Rep.  418. 

"In  the  case  of  a  contract  to  sell  or  a  sale  of  a  specified  article 
under  its  patent  or  other  trade  name,  there  is  no  implied  warranty 
as  to  its  fitness  for  any  particular  purpose."  Sales  Act,  §  15  (4). 
This  follows  the  proviso  in  Sale  of  Goods  Act,  §  14  (1),  which  "is 
intended  to  meet  the  case,  not  of  the  supply  of  what  I  may  call  for 
this  purpose  raw  commodities  or  materials,  but  for  the  supply  of 
manufactured  articles — steam  plows  or  any  form  of  invention  which 
has  a  known  name,  and  is  bought  and  sold  under  its  known  name, 
patented  or  otherwise."  Gillespie  v.  Cheney  (1896)  2  Q.  B.  59,  per 
Lord  Russell,  C.  J.  (not  applicable  where  buyer  buys  cargo  of  coal 
for  btmkering  steamers). 

147  Dushane  v.  Benedict,  120  U.  S.  GSO,  7  Sup.  Ct.  696,  30  L.  Ed. 
810:  Shaw  v.  Smith.  45  Kan.  334,  25  Pac.  886,  11  U  R.  A.  681; 
Morse  v.  Stockyard  Co.,  21  Or.  2S9,  28  Pac.  2,  14  L.  R.  A.  157;  Baum- 
bach  Co.  V.  Gessler,  79  Wis.  507,  48  N.  W.  802;  Omaha  Coal,  Coke 
&  Lime  Co.  v.  Fay,  37  Xeb.  68,  55  N.  W.  211;  Coyle  v.  Baum,  3 
Okl.  695,  41  Pac.  389;    Little  v.  G.  B.  Van  Syckle  &  Co.,  115  Mich. 


§  78)  IMl'MKl)    WAUHANTIKS   OF   ylAI-ITY.  250 

and  growers,  ami  cxeliulc  mere  dealers.^*'  And  sonic  courts 
contine  the  warranty  of  the  manufacturer  or  grower  to  latent 
defects  which  result  from  and  could  be  avoided  in  the  process 
of  manufacture  or  cultivation,  thus  excluding  liability  for  la- 
tent defects  in  materials  purchased  by  the  manufacturer,  if  the 
defects  were  unknown  to  him,  and  could  not  have  been  ascer- 
tained by  proper  examination.^*®  It  has  been  held  by  other 
courts,  however,  that  the  warranty  of  fitness  for  a  particular 
purpose  extends  even  to  latent  defects  in  materials  undiscover- 
able  by  the  manufacturer  or  grower.^""  Thus,  where  a  car- 
riage builder  supplied  a  carriage  pole  which  broke  and  injur- 
ed the  buyer's  horses,  it  was  held  immaterial  that  the  defect 
could  not  have  been  discovered  by  the  exercise  of  reasonable 
skill."^ 

480,  73  N.  W.  554.  See.  also,  McCaa  v.  Drug  Co.,  114  Ala.  74.  21 
South.  47f).  G2  Am."  SL  Rep.  88;  Davis  Calyx  Drill  Co.  v.  Mallory, 
137  Fed.  3.-^2,  69  C.  C.  A,  G02.  69  L.  R.  R.  973. 

The  riile  applies  to  a  quarryman.  Rhind  v.  Freedley  (N.  J.  Sup.) 
i'A  Atl.  9(13.  See  Sales  Act,  §  15  (1),  "whether  he  be  the  grower  or 
manufacturer  or  not." 

1*8  Aniorioan  Forcite  Powder  Mfg.  Co.  v.  Rrndy.  4  Aiii>.  Div.  95, 
38  N.  Y.  «upp.  545;  White  v.  Oakes,  8S  Me.  3G7,  34  Atl.  175,  32  L. 
II.  A.  592.  See,  also,  Dounce  v.  Dow,  0-1  N.  Y.  411;  Ilealy  v.  I'.rau- 
don.  21  X.  Y.  Supp.  390,  GO  Ilun.  515,  affirmed  142  N.  Y.  GSl,  37  N. 
F..  825:    Reynolds  v.  Electric  Co.,  141  Fed.  551,  73  C.  C.  A.  23. 

i<»H(»e  V.  Sanborn,  21  N.  Y.  552,  78  Am.  Dec.  1G3  (not  for  latent 
defect  in  material  used  which  the  manufacturer  is  not  shown,  and 
oannot  be  presumed,  to  have  known);  Carleton  v.  Lombard,  149  N. 
Y.  137.  43  N.  E.  422;  F.iorman  v.  Mills  Co.,  151  N.  Y.  482,  45  N.  B. 
S5G,  37  I>.  R.  A.  799.  .56  Am.  St.  Kop.  G35;  Howard  Iron  Works  v. 
Elevating  Co.,  113  App.  Div.  562.  99  N.  Y.  Supp.  163;  Bragg  v.  Mor- 
rill, 49  Vt.  45,  24  Am.  Rep.  102;  McKinnon  Mfg.  Co.  v.  Fish  Co.. 
102  Mich.  221.  GO  N.  W.  472;  Wisconsin  Red  Pressed  Brick  Co.  v. 
Hood,  67  Minn.  329,  69  N.  W.  1001,  64  Am.  St.  Rep.  418;  Tennessee 
River  Compress  Co.  v.  Leeds,  fKT  Tenn.  574.  37  S.  W.  389;  Reynolds 
V,  Electric  Co.,  141  F«l.  551.  73  C.  C.  A.  23.  See,  also.  The  Nimrod 
(D.  C.)  141  Fed.  215,  atlirmed  Union  Iron  Works  v.  Spottswood,  141 
Fed.  834,  72  C.  C.  A.  300. 

isoit-mdall  v.  Newson.  2  Q.  B.  Div.  102;  Rodgers  v.  Niles,  11 
Ohio  St.  48,  7S  Am.  Dec.  290;  Frost  v.  Dairy  Co.  (1905)  1  K.  B.  008 
(milk  containing  typhoid  germs);  Moore  v.  Koger,  113  Mo.  App. 
423,  87  S.  W.  602. 

181  Randall  v.  Newson,  2  Q.  B.  Div.  102. 

Where  the  buyer  prescribed  the  materials  and   dimensions  of  a 


260  CONDITIONS  AND   WARRANTIES.  (Ch.  7 

Warranty  of  M erchantahleness. 

In  a  sale  of  goods  by  description,  where  the  buyer  has  not 
had  an  opportunity  to  examine  them,  there  is,  in  addition  to 
the  impHed  condition  or  warranty  that  the  goods  shall  answer 
the  description,  an  implied  warranty  that  they  shall  be  salable 
or  merchantable.^ ^^  The  rule  is  usually  confined  to  sales  by 
description,  where  the  buyer  had  not  an  opportunity  to  ex- 
amine; ^^^  but  under  the  English  Sale  of  Goods  Act,  and  the 
proposed  American  Sales  Act,  the  condition  or  warranty  of 
merchantableness  is  excluded  only  by  an  actual  examination, 
and  then  only  as  to  defects  which  such  on  examination  ought 
to  have  revealed.^''*  No  accurate  definition  of  the  term  "mer- 
chantable" can  be  given,  but  it  has  been  said  that  the  goods 
must  be  "at  least  of  medium  quality  or  goodness."  ^^^ 

forging  to  be  used  for  a  piston  rod,  the  seller  was  liable  only  for 
ordinary  care  in  selecting  the  material  and  forging  it,  and  not  for 
defects  not  discoverable  by  such  care.  Rollins  Engine  Co.  v.  Forge 
Co.,  73  N.  H.  92,  59  Atl.  382,  68  U  R.  A.  441. 

152  Jones  V.  Just,  L.  R.  3  Q.  B.  197,  37  Law  J.  Q.  B.  89;  Drumr 
mond  V.  Van  Ingen,  12  App.  Cas.  284,  290;  Murchie  v.  Cornell,  155 
Mass.  60.  29  N.  E.  207,  14  L.  R.  A.  492,  31  Am.  St.  Rep.  526;  War- 
ner y.  Ice  Co.,  74  Me.  475;  Fitch  v.  Archibald,  29  N.  J.  Law,  160; 
Hood  V.  Bloch,  29  W.  Va.  244,  11  S.  E.  910;  Babcock  v.  Trice,  18 
111.  420,  68  Am.  Dec.  560;  MeiTiam  v.  Field,  39  Wis.  578;  McGJung 
V.  Kelley,  21  Iowa,  508;  English  v.  Commission  Co.,  6  C.  C.  A.  416, 
57  Fed.  451;  Alden  v.  Hart,  161  Mass.  576,  37  N.  E.  742;  Bunch,  v. 
Weil  Bros.  &  Bauer,  72  Ark.  343,  SO  S.  W.  582,  65  L.  R.  A.  80;  Cam- 
pion V.  Marston,  99  Me.  410,  59  Atl.  548.  See  Sales  Act,  §  15  (2); 
Sale  of  Goods  Act,  §  14  (2). 

Defendant  sold  to  plaintiff  in  bulk  all  the  ice  stored  in  certain 
icehouses,  with  the  understanding  that  plaintiff  purchased  it  to  re- 
sell in  tlie  general  course  of  the  ice  business  in  a  city.  Defendant 
did  not  put  up  the  ice,  but  bought  it  after  it  was  stored,  and  had; 
never  seen  it,  and  so  stated  to  plaintiff,  also  telling  him  from  whom 
he  purchased  it,  and  that  he  had  no  other  information  as  to  its' 
condition  or  quality  than  the  statements  of  such  seller.  Held,  that 
under  such  circumstances  there  was  no  implied  warranty  by  defend- 
ant that  the  ice  was  all  of  merchantable  quality.  Gage  v.  Carpen- 
ter, 107  Fed.  886,  47  C.  C.  A.  39. 

153  Cases  cited  note  152,  supra, 

154  Sale  of  Goods  Act,  §  14  (2);    Sales  Act,  §  15  (3). 

106  Howard  v.  Hoey,  23  Wend.  (N.  Y.)  350,  35  Am.  Dec.  572.  See 
also  Rodgers  v.  Niles,  11  Ohio  St.  48,  78  Am.  Dec.  290  ("of  medium 
quality  or  goodness,  free  from  such  defects  as  would  render  it  un- 


§  78)  IMPLIED  WARRANTIES   OF  QUALITY.  201 

When  the  goods  are  to  be  shipped  to  the  buyer,  or  to  be  de- 
Hvcred  to  him,  at  a  particular  place,  so  that  the  property  docs 
not  pass,  the  goods  remain  at  the  seller's  risk  until  delivery.^"" 
The  seller  must,  therefore,  stand  the  risk  of  any  extraordinary 
or  unusual  deterioration;^"^  but  the  buyer  takes  the  risk  of 
any  deterioration  necessarily  incident  to  the  transit,  and  the 
warranty  of  merchantableness  docs  not  extend  to  such  de- 
terioration.^''* The  goods  must,  however,  be  fit  for  shipment; 
that  is,  such  that,  allowing  for  necessary  deterioration,  they 
will  arrive  in  merchantable  condition.^"* 

IVarranty  in  Sale  of  Provisions. 

Blackstone  says  that  in  contracts  for  provisions  it  is  always 
implied  that  they  are  wholesome,  and  that  if  they  are  not  an 
action  on  the  case  lies  against  the  seller.^'"  But  in  England  it 
is  now  held  that  they  are  governed  by  the  same  rules  as  other 
commodities ;  that  is,  that,  in  the  sale  of  provisions  in  which  the 
buyer  has  an  opportunity  for  inspection,  no  warranty  is  im- 
plied; ^°^  but  that,  if  the  buyer  trusts  to  the  seller's  judgment 

merchantable  or  unfit  for  tbo  purpose  for   which   it  is  ordinarily 
used"). 

186  Ante,  p.  156. 

167  Bull  V.  Robinson,  10  Exch.  342,  per  Alderson.  B. 

158  Bull  V.  Robinson,  10  Exch.  342.  24  Law  J.  Exch.  165;  Tiejrgat 
V.  Brewing  Co.,  GO  111.  l.'iS;  Mann  v.  Everston.  32  Ind.  355;  English 
V.  Commission  Co.,  57  Fed.  451,  G  C.  C.  A.  416;  post,  p.  293.  A 
fortiori  where  the  property  passes  on  shipment.  Mobile  Fruit  & 
Trading  Co.  v.  McGuire,  81  Minn.  2;J2,  83  N.  W.  833;  Jones  v. 
Bloomgarden,  143  Mich.  326,  106  N.  W.  891. 

When  defendant,  after  inspecting  plaintiff's  orchard,  contracted 
in  November  for  all  plaintiff's  oranges,  to  be  taken  by  defendant  on 
or  before  April  1st,  and  paid  for  on  delivery,  plaintiff  to  delivi-r 
when  wanted  by  defendant,  and  the  oranges  were  ripe  in  January, 
but  defendant  refused  to  accept  them  till  March,  the  Implied  war- 
ranty, if  any,  extended  only  to  merchantableness  on  the  trees,  and 
did  not  entitle  defendant  to  refuse  oranges  because  too  ripe.  Bill 
V.  Fuller,  146  Cal.  50,  79  Pac.  592. 

iBo  Beer  v.  Walker,  46  L.  J.  C.  P.  677.  See,  also,  Mann  v.  Ever- 
ston, 82  Ind.  355;  Carleton  v.  T/ombard,  Ayers  &  Co.,  149  N.  T.  137. 
43  N.  E.  422;  McHenrj-  v.  Bulifaut,  207  Pa.  15,  56  Atl.  226;  Tni- 
schel  V.  Dean,  77  Ark.  546,  92  S.  W.  781;  Atkins  Bros.  Co.  v.  Grain 
Co.,  119  Mo.  App.  119,  95  S.  W.  949. 

180  3  Bl.  Coram.  166. 

181  Burnby  v.  Bollett,  16  Mees.  &  W.  644;   Emmerton  r.  Mathews. 


2G2  CONDITIONS   AND   WARRANTIES.  (Ch.  7 

to  select  them,  there  is  an  implied  warranty  that  they  are  fit 
for  their  purpose,  viz.,  human  food.^^^ 

In  the  United  States  it  has  been  held  in  some  cases  that  on 
a  sale  of  provisions  there  is  an  implied  warranty  that  they  are 
fit  for  consumption;  ^^^  but  the  rule  is  generally  confined  to 
sales  by  dealers  where  the  goods  are  bought  for  domestic  use — 
that  is,  it  does  not  apply  where  they  are  sold  as  mer- 
chandise.^^* 


IMPLIED   VtTARRANTIES    IN    SALE    BY    SAMPLE. 

79.   In  the  case  of  a  contract  to  sell  or  a  sale  by  sample— 

(a)  There  is  an  implied  Tirarranty  (sometimes  called  a  "condi- 
tion") that  the  bulk  shall  correspond  xvith  the  sample 
in  quality. 

7  Hurl.  &  N.  586,  31  Law  J.  Exch.  139;    Smith  v.  Baker,  40  Law  T. 
(N.  S.)  261. 

i62Bigge  V.  Parkinson,  7  Hurl.  &  N.  955,  31  Law  J.  Excb.  301; 
Beer  v.  Walker,  46  Law  J.  C.  P.  677,  25  Wkly.  Rep.  880. 

163  Van  Bracklin  v.  Fonda,  12  Johns.  (N.  Y.)  468,  7  Am.  Dec.  339; 
Divine  v.  McCormick,  50  Barb.  (N.  Y.)  116;  Hoover  v.  Peters,  19 
Mich.  51.  See,  Also,  Sinclair  v.  Hathaway,  57  Mich.  60,  23  N.  W. 
459,  58  Am.  Rep,  327;  Copas  v.  Provision  Co.,  73  Mich.  541,  41  N. 
W.  690;  Craft  v.  Parker,  Webb  &  Co.,  96  Mich.  245,  55  N.  W.  812, 
21  L.  R.  A.  139.    Cf.  Burch  v.  Spencer,  15  Him  (N.  Y.)  504. 

164  Moses  v.  Mead,  1  Denio  (N.  Y.)  378,  43  Am.  Dec.  676;  Id.,  5 
Denio  (N.  Y.)  617;  Winsor  v.  Lombard,  18  Pick.  (Mass.)  57,  62,  per 
Shaw,  C.  J.;  Humphreys  v.  Comline,  8  Blackf.  (Ind.)  516;  Ryder 
v.  Xeitge.  21  Minn.  70;  Hanson  v.  Hartse,  70  Minn.  282,  73  N.  W. 
163,  68  Am.  St.  Rep.  527;  Wiedeman  v.  Keller,  171  111.  93,  49  N.  E. 
210;  Warren  v.  Buck,  71  Vt.  44,  42  Atl.  979,  76  Am.  St.  Rep.  754. 
See,  also,  Emerson  v.  Brighara,  10  Mass.  197,  6  Am.  Dec.  109;  How- 
ard v.  Emerson,  110  Mass.  320,  14  Am.  Rep.  608.  But  see  Fairbank 
Canning  Co.  v.  Metzger,  118  N.  Y.  260,  267,  23  N.  E.  .372,  16  Am.  St. 
Rep.  7.53.  If  a  farmer,  not  a  dealer,  kills  a  hog,  and  sells  it,  know- 
ing that  the  purchaser  intends  to  eat  it.  there  is  no  implied  war- 
ranty that  the  hog  is  fit  for  food.  Giroux  v.  Stedmau,  145  Mass. 
439,  14  N.  E.  538,  1  Am.  St.  Rep.  472. 

A  waterworks  company,  distributing  water  for  domestic  use, 
does  not  warrant  the  purity  of  the  water.  Green  v.  Water  Co.,  101 
Wis.  258,  77  N.  W.  722,  43  L.  R.  A.  117,  70  Am.  St.  Rep.  911. 

Under  Sales  Act,  §  15.  it  seems  that  there  is  no  implied  war- 
ranty unless  the  case  falls  under  subsections  (1)  or  (2).  Cf.  sec- 
tion 14. 


§  79)  IMPLIKD    WAUKANTIKS    IN    8ALB    BT    8AMPLK.  203 

(b)  Tlicre  is  an  implied  ^warranty  (aometimes  called  a  "con- 

dition") that  tlie  buyer  shall  have  a  reasonable  oppor- 
tunity of  couix^arlng   the   bulk   'with   the   sample. 

(c)  If  the  seller  is  a  manufacturer,  and  in  some  Jurisdictions 

if  he  is  a  dealer  in  p;oods  of  that  kind,  there  is  an  im- 
plied ivarrauty  (sometimes  called  a  "condition")  that 
the  goods  shall  be  free  from  any  defect  rendering  them 
nnmcrchantable  Mirhich  Tirould  not  be  apparent  npon 
reasonable  examination  of  the  sample.^** 

It  is  not  to  be  assumed  that  every  sale  where  a  sample  is 
shown  is  a  sale  by  sample ;  for  the  seller  may  show  a  sample 
and  refuse  to  sell  by  it,  requiring  the  buyer  to  inspect  the  bulk 
and  to  form  his  own  judgment,  or  the  buyer  may  decline  to 
rely  on  the  sample  and  require  an  express  warranty.  It  must 
appear  that  it  was  a  term  of  the  contract,  express  or  implied, 
that  the  sale  was  by  sample.^®"  If  the  contract  is  in  writing 
and  makes  no  mention  of  a  sample,  evidence  is  inadmissible  to 
show  that  the  sale  was  by  sample.^ '^ 

Where,  however,  the  sale  is  by  sample,  a  warranty  is  im- 
plied that  the  bulk  shall  correspond  in  quality  with  the  sam- 
ple.^'^  The  reason  for  the  implication  is  that  there  is  no  op- 
portunity for  personal  examination  of  the  bulk.^'* 

i«6  See  Sales  Act,  §  16.     Cf.  Sale  of  Goods  Act,  §  15. 

180  Walter  A.  Wood  Harvester  Co.  v.  Ramberg,  GO  Minn.  219,  CI 
N.  W.  1132;  Smith  v.  Coe,  55  App.  Div.  585,  G7  N.  Y.  Supp.  350; 
Bunch  V.  Weil  Bros.  &  Bauer,  72  Ark.  343,  80  S.  W.  582,  65  L.  R. 
A.  80. 

"To  constitute  a  sale  by  sample,  In  the  leiral  sense  of  that  term,  it 
must  appear  that  the  parties  contracted  solely  in  reference  to  the 
sample  or  article  exhibited,  and  that  both  mutually  understood  that 
they  were  dealing  with  tlie  sample  with  an  understanding  that  the 
bullx  was  to  be  like  it."  Wood  v.  Micliaud.  63  Minn.  478,  05  N.  W. 
003.  per  Mitchell,  J. 

107  Gardiner  v.  Gray,  4  Camp.  144;  Wiener  v.  Whipple,  53  Wis. 
20S.  10  N.  W.  433,  40  Am.  Rep.  775;  Harrison  v.  McCormick,  89 
Cal.  .327,  26  Tac.  830.  23  Am.  St.  Rep.  469;  Imperial  Portrait  Co.  v. 
Bryan,  111  Ga.  99,  36  S.  E.  291;   ante,  p.  237. 

iB«  Parker  v.  Palmer.  4  Barn.  &  Aid.  387.  391;  Carter  v.  Crick, 
4  Hurl.  &  N.  412.  28  Uiw  J.  Exch.  238;  Schuchardt  v.  Aliens,  1 
Wall.  (U.  S.)  359,  370.  17  L.  Ed.  642;  Bradford  v.  Manly.  13  Mass. 
139,  7  Am.  Dec.   122;    WMlliams  v.   SpaCford,   8   Pick.   (Mass.)  250; 

10  0  See  note  169  on  following  page. 


264  CONDITIONS   AND   WARRANTIES.  (Ch.  7 

If  the  goods  do  not  correspond  with  the  sample,  the  buyer 
may  return  them,  unless  he  has  accepted  them,  or  the  contract 
relates  to  specific  goods  the  property  in  which  has  passed.^'" 
Whether  the  undertaking  of  the  seller  be  called  a  condition 
or  a  warranty,  its  performance,  if  the  property  has  not  passed, 
is  a  condition  precedent  to  the  obligation  of  the  buyer  to  ac- 
cept the  goods.^^^ 

The  buyer  is  entitled  to  a  reasonable  opportunity  of  compar- 
ing the  bulk  with  the  same,  and  on  a  refusal  of  the  seller  to  al- 
low such  comparison  the  buyer  may  repudiate  the  contract.^ '^ 

If  the  sample  contains  latent  defects,  which  would  render 
the  goods  unmerchantable,  and  which  would  not  be  apparent 

Gould  V.  Stein,  149  Mass.  570,  22  N.  E.  47,  5  U  R.  A.  213,  14  Am. 
St  Rep.  455;  Boothby  v.  Plaisted,  51  N.  H.  436,  12  Am.  Rep.  140; 
Merriman  v.  Chapman,  32  Ck>nn.  146;  Waring  v.  Mason,  18  Wend- 
(N.  Y.)  425;  Guntlier  v.  Atwell,  19  Md.  157;  Hanson  v.  Busse,  45 
111.  496;  Hubbard  v.  George,  49  111.  2T5;  Graff  v.  Foster,  67  Mo. 
512;  Brigham  v.  Retelsdorf,  73  Iowa,  712,  36  N.  W.  715.  It  seems 
that  in  Pennsylvania  the  warranty  implied  in  a  sale  by  sample, 
unless  there  are  circumstances  to  indicate  that  the  sample  is  to  be 
taken  as  a  standard  of  quality,  is  only  a  guaranty  that  the  bulk 
shall  correspond  in  kind  and  be  merchantable.  Boyd  v.  Wilson,  83 
Pa.  319,  24  Am.  Rep.  176.  See  Benj.  Sales  (Corbin's  Ed.)  §  96i9> 
note  26. 

169  "If  the  purchaser  distrusts  his  judgment,  he  can  require 
*  *  *  a  warranty  that  the  quality  or  condition  of  the  goods  *  *  * 
corresponds  with  the  sample  exhibited.  If  he  is  satisfied  without  a 
warranty,  and  can  inspect,  and  declines  to  do  it,  he  takes  upon  him- 
self the  risk  that  the  article  is  merchantable ;  and  he  cannot  relieve 
himself  and  charge  the  seller  on  the  ground  that  the  .examination 
will  occupy  time  and  is  attended  with  labor  and  inconvenience. 
If  it  is  practicable,  no  matter  how  inconvenient,  the  rule  applies. 
One  of  the  main  reasons  why  the  rule  does  not  apply  in  the  case  of 
a  sale  by  sample  is  because  there  is  no  opportunity  for  a  personal 
examination  of  the  bulk  of  the  commodity  which  the  sample  is 
shown  to  represent."  Barnard  v.  Kellogg,  10  Wall.  (U.  S.)  883,  19 
L.  Ed.  987,  per  Davis,  J. 

170  Heilbutt  v.  Hickson,  L.  R.  7  C.  P.  438;  Couston  v.  Chapman, 
Ia  R.  2  Sc.  App.  250,  at  page  254;  Azemar  v.  Casella,  L.  R.  2  G.  P. 
431;  Butler  v.  Northumberland,  50  N.  H.  33;  Boothby  v.  Plaisted, 
5!l  N.  H.  430,  438,  12  Am.  Rep.  140;  Magee  v.  Billingsley,  3  Ala. 
679;  Hardt  v.  Electric  Co.,  &4  App.  Div.  249,  82  N.  Y.  Supp.  835; 
post,  p.  365. 

171  See  Sales  Act,  §  11  (2). 

iT2Lorymer  v.  Smith,  1  B.  &  C.  1.     See,  also.  Pope  v.  Allis,  115 


§  79)  IMPI.IKD   WARRANTIES   IN   SALE   BY   SAMPLE.  2R5 

on  reasonable  examination  of  the  sample,  a  further  warranty 
is  inipiicd  that  goods  shall  be  free  from  such  defects.  Such, 
at  least,  is  the  rule  where  the  seller  is  the  manufacturer,'^^ 
though  it  has  been  held  otherwise  where  he  is  not  the  manu- 
facturer.^^* 

Warranty  that  Goods  arc  of  Seller's  Manufacture. 

Where  there  is  a  contract  for  the  sale  of  goods  by  a  manu- 
facturer, as  such,  it  seems  that  it  was  the  law  that  in  England 
there  is,  in  the  absence  of  any  trade  usage  to  the  contrary,  an 
implied  warranty  that  the  goods  are  of  the  seller's  own  manu- 
facture.^" This  question  does  not  appear  to  have  been  raised 
in  the  United  States. 

Fnlfilhnent  of  Warranty  a  Condition. 

As  has  been  pointed  out,  these  implied  warranties  of  quality 
are  often  termed  "conditions."  *^'  While  the  term  "warranty" 
has  been  retained,  it  must  be  borne  in  mind  that  they  are  not 
mere  warranties  in  the  narrow  sense  of  the  term,  and  that. 
where  the  property  has  not  passed,  the  buyer  may  treat  the  ful- 
fillment of  the  warranty  as  a  condition  of  his  obligation  to  ac- 
cept the  goods. ^^^ 

Whether  an  Express  Excludes  an  Implied  Warranty. 

Where  a  warranty  arises  by  implication  of  law,  it  may  of 
course  be  negatived  or  varied  by  express  agreement.^^*    The 

U.  S.  303,  6  Sup.  Ct.  69,  29  L.  Ed.  393;  BenJ.  Sales,  §  594;  Sales 
Act.  §  1(5  (b).    Cf.  section  14;  post,  p.  294. 

The  terms  of  the  contract  may  uegative  the  right  of  Inspection. 
rolenf.'hi  v.  Milk  Co.,  49  Sol.  J.  120. 

1T3  Heill)iitt  V.  Hickson,  L,  R.  7  C.  P.  438,  450;  Drummond  v. 
Van  Inpen.  12  App.  Cas.  284;  Nixa  Canning  Co.  v.  Grocer  Co.,  70 
Kan.  004,  79  Tac.  141.  70  L.  R.  A.  653. 

iTiTarkinson  v.  Lee,  2  East,  314  (doubted  by  Brett.  J.  A.,  in 
Randall  v.  Xewson,  2  Q.  B.  Div.  102);  Dickinson  v.  Gay,  7  Allen 
(Mass.)  29,  S3  Am.  Dec.  050.  See  Sales  Act,  §  16  (c),  "if  the  seller 
is  a  dealer."    Cf.  Sale  of  Goods  Act.  §  15  (2)  (c). 

178  Johnson  v.  Raylton.  7  Q.  B.  Dlv.  438,  per  Brett,  L.  J.,  Cotton, 
Tj.  J.,  and  Bramwell.  L.  J.,  dissentinp.     S.  (^. 

A  clause  to  this  effect  in  the  draft  of  the  Sale  of  Goods  Act  -was 
cut  out  in  committee.    Chalm.  Sale  of  Goods  Act  (CUi  Ed.)  30. 

ire  Ante,  p.  230. 

ITT  Ante,  p.  220;  post,  p.  SCS. 

1T8  Burnett  v.  Hensley,  118  Towa.  575.  92  N.  W.  678;    Downglac 


266  CONDITIONS  AND  WARRANTIES.  (Ch.  7 

parties  may  alter  at  will  the  obligations  which  the  law  implies 
from  the  general  nature  of  the  contract.  As  a  rule,  upon  the 
principle,  "Expressum  facit  cessare  taciturn,"  an  express  war- 
ranty excludes  an  implied  one  upon  the  same  subject.^''*  Thus, 
where  there  is  an  express  warranty  of  quality,  no  warranty  of 
fitness  for  a  particular  purpose  will  be  ordinarily  implied.^®'* 
And  an  express  warranty  of  quality  ordinarily  excludes  an  im- 
plied warranty  of  merchantableness.^*^  It  seems,  however, 
that,  while  an  express  warranty  as  a  rule  excludes  an  implied 
warranty  on  the  same  subject,  it  will  not  be  held  to  have  that 
effect  if  such  does  not  appear  to  be  the  intention  of  the  par- 
ties.^^^    "It  is  true  that,  as  a  general  rule,  no  warranty  will  be 

Mfg.  Co.  V.  Mahon,  13  N.  D.  516,  101  N.  W.  903;  Bagley  v.  Extin- 
guisher Co.,  150  Fed.  284,  80  0.  C.  A.  172.    See  Sales  Act,  §  71. 

179  Dickson  v.  Zizinia,  10  C.  B.  602,  20  Law  J.  C.  P.  73;  Deming 
V.  Foster,  42  N.  H.  165.  175;  McGraw  v.  Fletcher,  35  Mich.  104; 
Johnson  v.  Latimer,  71  Ga.  470;  International  Pavement  Co.  v.  Ma- 
chine Co.,  17  Mo.  App.  204;  Bucy  v.  Agricultural  Works.  89  Iowa, 
464,  56  N.  W.  541 ;  Malsby  v.  Young,  104  Ga.  205,  30  S.  E.  854 ;  Moul- 
trie Repair  Co.  v.  Hill,  120  Ga.  730,  48  S.  E.  143. 

180  J.  I.  Case  Plow  Works  v.  Niles  &  Scott  Co.,  90  Wis.  590,  63 
N.  W.  1013;  Dwight  Bros.  Paper  Co.  v.  Paper  Co.,  114  Wis,  414, 
90  N.  W.  444;  La  Crosse  Plow  Co.  v.  Helgeson,  127  Wis.  622,  106 
N.  W.  1094;  Reynolds  v.  Electric  Co.,  141  Fed.  551,  73  C.  C.  A.  23 
(Cf.  Parsons  Band-Cntter  &  Self-Feeder  Co.  v,  Mallinger,  122  Iowa, 
703,  98  N.  W.  580) ;  Reeves  &  Co.  v.  Byers,  155  Ind.  535,  58  N.  E. 
713 ;  Lombard  Water-Wheel  Governor  Co.  v.  Paper  Co.,  101  Me. 
114,  63  Atl.  555,  6  L.  R.  A.  (N.  S.)  180;  Monroe  v.  Hickox,  Mull.  & 
Hill  Co.,  144  Mich.  30,  107  N.  W.  719. 

181  De  Witt  V.  Berry,  134  U.  S.  306,  10  Sup.  Ct.  536,  33  L.  Ed. 
896.  The  contract  was  for  the  sale  of  varnish,  and  provided : 
"These  goods  to  be  exactly  the  same  quality  as  we  make"  for  cer- 
tain third  persons,  "and  as  per  sample  bbls.  delivered" — and  continu- 
ed: "Turpentine  copal  varnish  at  65  cents  per  gallon;  turpentine 
japan  dryer  at  55  cents  per  gallon."  It  was  held  that  the  latter 
terms  were  but  stipulations  as  to  price,  and  imported  no  warrantj' 
that  the  goods  delivered  should  be  known  to  the  trade  by  those 
names  and  of  a  certain  standard  of  quality.  It  is  to  be  observed 
that  the  quality  of  the  goods  was  expressly  fixed  by  reference  to 
certain  other  goods,  and  this  express  warranty  might  well  be  con- 
sti-ued  as  excluding  any  implied  warranty  of  quality.  Lamar,  J., 
observes,  however,  "that  there  are  numerous  well-considered  cases 
that  an  express  warranty  of  quality  excludes  an  implied  warranty 
that  the  articles  sold  are  merchantable  or  fit  for  their  intended  use." 

182  See  Sales  Act,  §  15  (6),  "unless  inconsistent  therewith." 


§  79)  lMl'l.Ii:i>    WAKUANTIK.S    IN    SALE    BY    SAMIM.P:.  207 

implied  where  the  parties  have  expressed  in  words  the  war- 
ranty by  which  they  mean  to  be  bound ;  but  the  rule  does  not 
extend  to  the  exclusion  of  warranties  implied  by  law,  where 
they  are  not  excluded  by  the  terms  of  the  contract."  ^"  And 
it  was  said  in  an  English  case:  "The  doctrine  that  an  express 
provision  excludes  implication  *  *  *  does  not  affect  cases 
in  which  the  express  provision  apjicars  *  *  *  to  have  been 
superadded  for  the  benefit  of  the  buyer,"  ^®*  Thus  a  warranty 
that  troop  stores  should  pass  inspection  of  the  East  India  Com- 
pany's officers  was  held  not  to  exclude  an  implied  warranty 
that  the  stores  should  be  reasonably  fit  for  consumption  by  the 
troops.  ^^^ 

183  Blackmore  v.  Fairbanks.  Morse  &  Co.,  79  Iowa,  282,  44  N.  W. 
548.  See,  also.  Alpha  Cbeck  Rower  Co.  v.  Bradley,  105  Iowa,  537, 
75  N,  W.  369;  Timkeu  Carriage  Co.  v.  C.  S.  Smith  &  Co.,  123  Iowa, 
554,  99  N.  W.  183. 

Where  plaintiff  had  no  opportunity  to  Inspect  the  machinery  sold, 
and  defendant  knew  the  purposes  for  which  it  was  required,  there 
Is  an  implied  warranty  that  it  shall  be  tit  for  such  purposes;  such 
Implied  warranty  not  being  inconsistent  with,  or  excluded  by,  the 
express  agreement  in  the  contract  that  the  uuichinery  should  be  of  a 
certain  power  and  iu  good  order,  except  irom  exposure  to  the 
weather.     Blackmore  v.  Fairbanks,  Morse  &  Co.,  supra. 

Where  a  contract  of  sale  provided  tliat  the  machine  sold  must 
be  paid  for  before  delivery  in  order  that  an  express  warranty  con- 
tained In  the  contract  should  become  effective,  and  delivery  was 
made  by  the  seller  before  payment  was  demanded,  and  the  buyer 
refused  to  settle  until  after  a  trial  of  the  machine,  the  seller  ac- 
quiescing, there  was  a  waiver  of  the  express  warranty,  and  the 
buyer  could  rely  upon  the  warranty,  implied  by  law.  that  the  ma- 
chine was  adapted  to  the  use  intended.  Parsons  Band-Cutter  &  Self- 
Feeder  Co.  v.  Mallinger,  122  Iowa.  703.  98  N.  W.  580. 

18*  Mody  V.  Gregsou,  L.  R.  4  Exch.,  at  page  53,  per  Willes,  J. 
See  Drunimond  v.  Van  Ingen.  12  App.  Cas.  284;  Merrlam  v.  Field, 
24  Wis.  040;  Boothby  v.  Scales,  27  Wis.  G26;  Wilcox  v.  Owens,  04 
Ga.  001;    Austin  v.  Cox,  60  Ga.  521. 

186  Bigge  V.  Parkinson,  7  Hurl.  &  N.  955,  31  Law  J.  Excb.  301. 


268  PERFORMANCE   OF  CONTRACT.  (Ch.  8 

CHAPTER  Vm. 

PERFORMANCE    OF    CONTRACT. 

80-81.  In  General. 

82.  Deliverj'. 

83-85.  Place,  Time,  and  Manner  of  Delivery. 

86-88.  Delivery  of  Wrong  Quantity. 

89.  Delivery  by  Installments. 

9(K91.  Delivery  to  Carrier. 

92-93.  Buyer's  Right  to  Examine  Goods. 

94.  Acceptance. 

95-96.  Payment. 

97-99.  Excuses   for   Nonperformance   of   Conditions. 

IN  GENZKAIi. 

80.  It  is  tlie  duty  of  the  seller  to  deliver  the  goods,   and  of 

the  bnyer  to  accept  and  pay  for  them,  in  accordance 
ipith  the  terms  of  the  contract  to  sell  or  sale.i 

81.  PAYMENT     AND     DELIVERY     CONCURRENT     CONDI- 

TIONS. Unless  otherwise  agreed,  delivery  of  the  goods 
and  payment  of  the  price  are  concurrent  conditions; 
that  is  to  say,  the  seller  must  be  ready  and  ivilling  to 
give  possession  of  the  goods  to  the  buyer  in  exchange 
for  the  price,  and  the  buyer  must  be  ready  and  willing 
to  pay  the  price  in  exchange  for  possession  of  the 
goods. 2 

As  we  have  seen,  where  specific  goods  are  sold,  and  nothing 
is  said  as  to  the  time  of  payment,  the  presumption  is  that  the 
sale  is  for  cash,  and  not  on  credit.  The  property  passes,^  but 
subject  to  the  seller's  lien;  and  neither  is  the  seller  bound  to  de- 
liver possession  of  the  goods,  nor  is  the  buyer  bound  to  pay 
the  price,  except  upon  performance  by  the  other  party.*     In 

1  Sales  Act,  §  41;  Sale  of  Goods  Act,  §  26. 

»  Sales  Act,  §  42;  Sale  of  Goods  Act,  §  27. 

»  Ante,  p.  121. 

4  Bloxam  v.  Sanders,  4  Barn.  &  C.  941,  948,  per  Bayley,  J.;  Leonard 
v.  Davis,  1  Black  (U.  S.)  476,  17  L.  Ed.  222;  Tipton  v.  Feitner,  20 
N.  Y.  423;  Allen  v.  Hartfleld,  76  111.  358 ;  Davis  v.  Gilliam,  14  Wash. 
206,  44  Pac.  119. 


§  82)  DKLIVKKY.  269 

executory  contracts  of  sale,  wlicrc  the  parties  have  not  other- 
wise agreed,  the  rule  as  to  the  concurrent  duty  of  delivery 
and  payment  is  the  same.  Neither  party  can  enforce  the  con- 
tract against  the  other  without  showing  readiness  and  willing- 
ness to  perform."  It  is  not  necessary,  in  order  to  maintain  an 
action  on  the  contract,  to  show  actual  tender;  readiness  and 
willingness  is  enough." 

While  the  presumption  is  in  favor  of  a  cash  sale,  and  hence 
that  delivery  and  payment  are  concurrent  conditions,  the  par- 
ties may,  of  course,  make  whatever  bargain  they  please ;  and,  if 
the  bargain  is  that  the  sale  is  on  credit,  the  buyer  is  entitled  to 
the  immediate  delivery  of  the  goods ; ''  though,  as  we  shall  see, 
if  he  fails  to  take  the  goods,  and  afterwards  becomes  insolvent, 
or  if  the  term  of  credit  expires  before  he  exercises  his  right  to 
take  the  goods,  the  seller's  lien  revives.* 


DELIVERY. 

82.  MEANING.  "Delivery"  means  vol-antary  transfer  of  pos- 
session, actual  or  constructive,  from  the  seller  to  the 
buyer. 

6  Morton  v.  Lamb,  7  Term  R.  125;  Rawson  v.  Johnson,  1  East,  203; 
Porter  v.  Rose.  12  Johns.  (N.  Y.)  200,  7  Am.  Dec.  30G;  Cook  v.  Ferral's 
Adm'rs.  13  Wend.  (N.  Y.)  28o;  Robison  v.  Tyson.  40  Ta.  280;  Hapj,'oo(i 
V.  Shaw,  105  Mass.  27(!;  Phelps  v.  Hubbard,  51  Vt.  4S0;  Hough  v. 
Rawson,  17  111.  oSS ;  Stoolflre  v.  Royse,  71  111.  223;  Posey  v.  Scales, 
55  Ind.  282;  Simmons  v.  Green.  .35  Ohio  St.  104;  Sousely  v.  Burns' 
Adm'r.  10  Bush  (Ky.)  87;  Walter  v.  Reed,  34  Neb.  544,  52  N.  W. 
082;  Sanlwrn  v.  ShiplxTd.  .50  Minn.  144,  GO  N.  W.  1080;  Campbell  v. 
Moran  Bros.  Co..  07  Fed.  477,  38  C.  C.  A.  203;  Catliu  v.  Jones  (Or.) 
85  Pac.  515. 

«  Rawson  v.  Johnson,  1  East,  203;  Waterhouse  v.  Skinner,  2  Boa. 
&  P.  447;  Jackson  v.  Allaway,  0  Man.  &  G.  042;  Mitchell  v.  I>e  Clair. 
105  Mass.  308,  43  X.  R  117:    Catlin  v.  Jones  (Or.)  85  Pac.  515. 

T  Bloxara  v.  Sanders,  4  Barn.  &  C.  941,  948,  per  Bay  ley,  J.;  ante, 
p.    122;    post.    p.    314. 

8  Post,  p.  315. 


270  PEKFOKMANCE    OF   CONTRACT.  (Ch.  8 


PLACE,    TIME,    AND    MANNER    OF   DELIVERY. 

83.  PLACE.     AVliether  it  is  for  tlie  buyer  to  take  possession  of 

the  goods  or  for  the  seller  to  send  them  to  the  buyer 
is  a  question  depending  in  each  case  on  the  contract, 
express  or  implied,  bet\eeen  the  parties.  Apart  from 
any  such  contract,  express  or  implied,  the  place  of  de- 
livery is  the  seller's  place  of  business,  if  he  have  one, 
and,  if  not,  his  residence;  but,  if  the  contract  be  for 
the  sale  of  specific  goods,  x^hich  to  the  kno^vledge  of 
the  parties  Tcrhen  the  contract  is  made  are  in  some 
other  place,  then  that  place  is  the  place  of  delivery.^ 

84.  TIME.      'Where,  under  the  contract  of  sale,  the  seller  is 

bound  to  send  the  goods  to  the  buyer,  but  no  time  for 
sending  them  is  fixed,  the  seller  is  bound  to  send  them 
-within  a  reasonable  time.io 

85.  MANNER.     As  a  rule,  -where  the  goods  at  the  time  of  sale 

are  in  the  possession  of  a  third  person,  the  seller  has 
not  fulfilled  his  obligation  to  deliver  to  the  buyer  un- 
less and  until  such  third  person  acknovp-ledges  to  the 
buyer  that  he  holds  the  goods  on  the  buyer's  behalf. 
But  the  transfer  of  a  bill  of  lading,  and  in  some  ju- 
risdictions the  transfer  of  a  w^arehouse  receipt,  op- 
erates as  a  delivery  of  the  goods. n 

Meaning  of  Delivery. 

"Delivery,"  in  general,  may  be  defined  as  the  voluntary 
transfer  of  possession  from  one  person  to  another.^^  Ben- 
jamin points  out  ^^  that  the  word  "delivery"  is  unfortunately 

9  Following  Sale  of  Goods  Act,  §  29  (1);    Sales  Act,  §  43  (1). 
Referring  to  the  above  subsection,  Judge  Chalmers  says  that  as 

regards  the  place  of  delivery  there  was  no  authority  in  point,  but 
it  seems  substantially  to  express  the  American  law.     Post,  p.  275. 

10  Sale  of  Goods  Act,  §  29  (2);    Sales  Act,  §  43  (2). 

11  Sale  of  Goods  Act,  §  29  (3).  See,  also,  Sales  Act,  §  43  (3),  which 
adds:  "But  as  against  all  others  than  the  seller  the  buyer  shall  be 
regarded  as  having  received  delivery  from  the  time  when  such  person 
first  has  notice  of  the  sale."     Cf.  section  25;    ante,  p.  206. 

In  jurisdictions  where  delivery  is  essential  to  ti'ansfer  the  prop- 
erty against  third  persons,  it  has  been  held  sufficient  to  constitute 
delivery  if  notice  of  the  sale  be  given  to  the  person  in  possession 
and  he  does  not  dissent.  Ante,  p.  207.  See.  also.  Freiberg  v.  Steen- 
bock,  54  Minn.  509,  56  N.  W.  175.  But  see  Hallgarten  v.  Oldham,  135 
Mass.  1,  40  Am.  Rep.  433. 

12  See  Sale  of  Goods  Act,  §  62;  Sales  Act,  §  76;  Pol.  Poss.  43,  46. 
18  Benj.  Sales,  §  074  et  seq. 


§§  83-85)      FLACK,  TIMK,  AND   JIANNKU    OF    DKI.IVKKT.  271 

used  in  very  dilTercnt  senses:  (1)  In  the  sense  of  transfer  of 
title  or  property ;  (2)  in  the  sense  of  delivery  of  possession,  as 
tlie  correlative  of  the  "actual  receipt"  required  by  the  statute  of 
frauds;  (3)  in  the  sense  of  delivery  of  possession  in  per- 
formance of  the  contract ;  and  (4)  in  the  sense  of  delivery 
of  possession  sufficient  to  destroy  the  seller's  lien,  or  even  his 
right  of  stoppage  in  transitu.  Much  confusion  is  caused  by 
the  varying  senses  in  which  this  term  is  employed.  "But,"  as 
Judge  Chalmers  remarks,^*  "it  would  perhaps  be  more  correct 
to  say  that  a  delivery  which  is  effective  for  one  purpose  is  in- 
eflfectual  for  other  purposes.  For  instance,  delivery  to  a  car- 
rier generally  passes  the  property  to  the  buyer,  but  does  not  de- 
feat the  right  of  stoppage  in  transitu,  while  delivery  by  the 
carrier  to  the  consignee  does  defeat  that  right."  As  we  have 
seen,  mere  delivery  does  not  of  itself  ever  effect  a  transfer  of 
the  title  or  property ;  whether  the  property  passes  depends  sole- 
ly upon  the  intention  of  the  parties.^ "^  Delivery  under  the  stat- 
ute of  frauds  has  already  been  considered. ^°  Delivery  as  af- 
fecting the  seller's  lien  ^^  and  the  right  of  stoppage  in  tran- 
situ "  will  be  considered  later.  The  question  with  which  we 
are  here  concerned  is  what  delivery  is  effectual  in  performance 
of  the  contract,  so  as  to  enable  the  seller  to  defend  an  action 
for  nondelivery. 

Constructive  Delivery. 

Delivery  by  agreement  or  attornment  has  already  been  dis- 
cussed in  considering  what  delivery  is  necessary  to  constitute 
"actual  receipt"  under  the  statute  of  frauds.^*  As  we  have 
seen,  such  delivery  may  take  place  in  three  classes  of  cases: 
(1)  Where  tlie  seller  is  in  possession  of  the  goods,  and  after 
the  sale  attorns  to  the  buyer,  and  continues  to  hold  the  goods 
as  his  bailee;  (2)  when  the  buyer  is  in  possession  of  the  goods 
as  bailee,  and  after  the  sale,  with  the  seller's  assent,  continues 
to  hold  on  his  own  account ;   (3)  where  a  third  person  is  in  pos- 

i<  Sale  of  Goods  Act  (6th  Ed.)  p.  122. 

IB  Ante,  p.  il9.  But  lu  some  jurisdictions  delivery  Is  essential  to 
transfer  the  proi)erty,  under  some  circumstances,  as  against  third 
persons.     Ante,  p,  204. 

i«  Ante,  p.  93  et  seq.  is  Post,  p.  329  et  seq. 

IT  Post,  p.  317.  i»  Ante.  p.  93. 


272  PERFORMANCE   OF   CONTRACT.  (Ch.  8 

session  of  the  goods  as  bailee  of  the  seller,  and  such  third  per- 
son, with  the  consent  of  the  seller,  attorns  to  the  buyer,  and 
continues  to  hold  as  his  bailee. 

To  these  classes  of  constructive  delivery  may  be  added  a 
fourth ;  that  is,  where  the  goods  are  not  in  the  custody  of  any 
person,  as  timber  lying  at  the  disposal  of  the  seller  on  the  prem- 
ises of  a  person  from  whom  he  bought  it,  or  at  a  public  wharf, 
or  logs  floating  in  a  river.  ^° 

It  seems  that  whatever  will  constitute  such  a  delivery  as  to 
sastisfy  the  statute  of  frauds  will  constitute  delivery  in  perform- 
ance of  the  contract. 

Symbolical  Delivery. 

Lord  Ellenborough  said  in  Chaplin  v.  Rogers  ^^  that  "where 
goods  are  ponderous,  and  incapable  of  being  handed  over  from 
one  to  another,  there  need  not  be  an  actual  delivery,  but  it 
may  be  done  by  what  is  tantamount,  such  as  the  delivery  of  a 
key  of  a  warehouse  in  which  the  goods  are  lodged,  or  by  the 
delivery  of  other  indicia  of  property."  Although  delivery  by 
giving  a  key  of  the  place  where  the  goods  are  stored  is  fre- 
quently classed  as  symbolical  delivery,^^  Sir  F.  Pollock  shows 
that  the  key  is  not  the  symbol  of  the  goods,  but  that  the  trans- 
action "consists  of  such  a  transfer  as  the  nature  of  the  case  ad- 
mits, and  as  will  practically  suffice  for  causing  the  new  posses- 
sion to  be  recognized  as  such."  ^^  But  the  bill  of  lading  is  uni- 
versally recognized  as  the  symbol  of  the  goods,  and  the  trans- 
fer of  the  bill  of  lading  operates  as  a  symbolical  delivery  of' 
them. 2*  So,  also,  the  transfer  of  the  grand  bill  of  sale  of  a 
vessel  at  sea  constitutes  a  sufficient  delivery  of  the  vessel.^'* 
The  common  law  drew  a  hard  and  fast  line  of  distinction, 
says  Judge  Chalmers,^*  between  the  transfer  of  the  bill  of 

2  0  Post,  p.  274. 

21  1  East,  192.  See,  also,  Ellis  v.  Hunt,  3  Term  R.  464,  per  Lord 
Kenyon;    Packard  v.  Dunsmore,  11  Cush.  (Mass.)  282. 

2  2  Vlning  V.  Gilbreth,  39  Me.  496;   Barr  v.  Reitz,  53  Pa.  256. 

28  Pol.  Poss.  61. 

2*  Sanders  v.  MacLean,  11  Q.  B.  Div.  327,  341;  ante,  p.  33;  post, 
p.  333. 

25  Atkinson  v.  Maling,  2  Term  R.  4G2;  Crapo  v.  Kelly,  16  Wall.  (U. 
S.)  610,  040,  21  L.  Ed.  430.    See  ante,  p.  207. 

28  Chalmers,  Sale  of  Goods  Act  (6th  Ed.)  p.  71. 


§§  83-85)      PLACE,  TIME,  AND    MANNER  OF  DELIVERY.  273 

lading  and  other  documents,  such  as  dock  and  wharf  war- 
rants, and  warehouse  receipts,  the  transfer  of  which  operates 
only  as  a  token  of  authority  to  take  possession,  and  not  as  a 
transfer  of  possession."^  It  is  possible,  however,  that  the  trans- 
fer of  such  a  document,  making  the  goods  deliverable  to  order, 
if  the  goods  represented  by  the  instrument  were  subject  to  no 
liens  or  charges,  would  be  sufficient  in  performance  of  the  con- 
tract, on  the  ground  of  an  attornment  in  advance.*' 

And  in  some  jurisdictions,  in  accordance  with  the  mercantile 
understanding,  warehouse  receipts  are  treated  as  standing  on 
the  same  footing  as  bills  of  lading.*" 

Seller  not  Bound  to  Send  Goods. 

In  the  absence  of  a  contrary  agreement,  the  seller  is  not 
bound  to  send  or  carry  the  goods  to  the  buyer.     He  does  all 

«T  Ante,  p.  96;  post,  p.  319.  In  Farina  v.  Homo.  IG  Mees.  &  W, 
119,  It  was  held  that  the  indorsement  by  the  seller  to  the  buyer  of 
a  delivery  warrant,  signed  by  a  wharfinger,  maljing  the  goods  deliv- 
erable to  the  seller  or  his  assignee  by  indorsement  on  payment  of 
rent  and  charges,  did  not  constitute  an  actual  receipt  under  the  stat- 
ute of  frauds,  In  the  absence  of  attornment  by  the  wharfinger.  Cf. 
Hallgarten  v.  Oldham,  135  Mass.  1,  4G  Am.  Rep.  433,  per  Holmes,  J. 
Many  of  the  cases  which  discuss  the  question  of  symbolical  delivery 
turn  simply  upon  the  transfer  of  the  property  from  seller  to  buyer — 
a  fact  which  must  always  be  carefully  borne  in  mind.  See  I>H>nard 
V.  Davis,  1  Black  (U.  S.)  47(5,  17  L.  Ed.  222;  Bethel  Steam  Mill  Co. 
V.  Brown,  57  Me.  9.  09  Am.  Dec.  572;  Shepard  v.  King.  9G  (la.  81. 
23  S,  E.  113.  Other  cases  turn  on  the  question  whether  there  "was 
such  a  retention  of  possession  by  the  seller  as  to  render  the  sale 
fraudulent  as  against  creditors,  without  Involving  the  question  of 
deliverj',  pure  and  simple.  Will<es  v.  Ferris,  5  Johns.  (N.  Y.)  33.'.  4 
Am.  Dec.  3&4;  Barr  v.  Reitz,  T>Z  Pa.  2Ty{\\  Benford  v.  Schell,  55  Pa. 
393;  Adams  v.  Foley,  4  Iowa,  44;  Puckett  v.  Reed.  31  Ark.  131.  This 
seems  to  be  the  explanation  of  Gibson  v.  Stevens,  8  How.  (U.  S.)  3S4, 
12  L.  Ed.  1123,  in  which  the  title  of  the  transferee  of  a  warehouse 
receipt  (not  undertaking  to  deliver  to  the  order  of  the  bailor)  was 
sustained  as  against  an  attaciiing  pre<litor  of  the  bailor,  although 
the  court  says  that  the  transfer  "[)asspd  the  title  and  possession." 
See  Hallgarten  v.  Oldham,  supra,  per  Holmes,  J.,  commenting  on  this 
case. 

28  BonJ.  Sales,  §  697;  post,  pp.  274,  320.    Cf.  Salea  Act.  5  43  (.*?). 

2t>  See  Davis  v.  Russell.  52  Cal.  Oil,  28  Am.  Rep.  647;  Allen  v. 
^[aury,  r,(i  Ala.  10;  Morohants'  Bank  of  Dotrolt  v.  Hibbard,  4S  Mleh. 
lis.  11  N.  W.  834.  42  Am.  Rep.  405;  First  Nat.  Bank  v.  Bates  (D.  C.) 
1  Fed.  702;   GUI  v.  Frank.  12  Or.  507.  8  Pac.  704.  53  Am.  Rep.  378. 

Tiff.Sales(2d  En.)— 1<< 


274  PERFORMANCE    OF   CONTRACT.  (Ch.  8 

that  he  is  bound  to  do  by  leaving  or  placing  the  goods  at  the 
buyer's  disposal,  so  that  he  may  remove  them  without  lawful 
obstruction.^" 

Goods  in  Possession  of  Third  Person. 

If  the  goods  are  on  the  premises  of  a  third  person,  the  seller 
must  obtain  the  license  of  such  person  for  the  buyer  to  come 
and  remove  the  goods,  and,  if  the  goods  are  in  the  custody  of 
such  person  as  bailee,  his  attornment  to  the  buyer.^^  Such 
license  or  attornment,  it  seems,  may  be  given  in  advance. 
Thus,  where  the  defendant  sold  at  auction  a  rick  of  hay  on  the 
premises  of  ].,  who  had  given  a  license  to  remove  it,  and  the 
license  was  read  at  the  auction,  and  the  defendant  gave  the 
buyer  a  note  to  J.,  requesting  him  to  permit  the  buyer  to  re- 
move the  hay,  it  was  held  that,  although  permission  was  re- 
fused, the  delivery  was  complete. ^^ 

If  the  goods  are  not  in  the  custody  of  any  person,  as  timber 
lying  at  the  disposal  of  the  seller  on  the  premises  of  the  person 
from  whom  he  bought  it,  or  at  a  public  wharf,  or  logs  floating 
in  a  river,  delivery  may  be  made  by  word  or  act,  putting  the 
goods  at  the  disposal  of  the  buyer  and  suffering  him  to  assume 
the  same  position  of  control  which  the  seller  had.^^ 

3  0  Wood  V.  Tassell,  6  Q.  B.  234;  Smith  v.  Chance,  2  Barn.  &  Aid. 
753;  Middlesex  Co.  v.  Osgood,  4  Gray  (Mass.)  447;  Phelps  v.  Hub- 
bard, 51  Vt  489;  Smith  v.  Gillett,  50  III.  290;  Dakota  Stock  &  Graz- 
ing Co.  V.  Price,  22  Neb.  96,  34  N.  W.  97  (sale  of  ranch  and  cattle  on 
range);    Hillestad  v.  Hostetter,  46  Minn.  393,  49  N.  W.  192. 

31  Smith  V.  Chance,  2  Barn.  &  Aid.  753. 

3  2  Salter  v.  Wool  lams,  2  Man.  &  G.  650.  See,  also.  Wood  v.  Man- 
ley,  11  Adol,  &  E.  34. 

83  Snow  V.  Terrett,  167  Mass.  457,  45  N.  E,  764;  Avery  Mfg.  Co.  v. 
Emsweller,  3J  Ind.  App.  291,  67  N.  E.  946. 

"In  all  cases  the  essence  of  delivery  is  that  the  deliverer  by  some 
apt  and  manifest  acts  puts  the  deliveree  in  the  same  position  of  con- 
trol over  the  thing,  either  directly  or  through  a  custodian,  which  he 
kimself  held  Immediately  before  that  act."  Pollock,  Possession,  43, 
46. 

See  Leonard  v.  Davis,  1  Black  (U.  S.)  476,  17  L.  Ed.  222;  Jewett 
V.  Warren,  12  Mass.  300,  7  Am.  Dec.  74 ;  Boynton  v.  Veazie,  24  Me. 
280;  Hutchins  v.  Gilchrist,  23  Vt  82;  Kingsley  v.  White,  57  Vt.  565. 
Ante,  p.  97. 


.^§83-85)       PLACE,  TIME,  AND    MANNLK    Ul     DKLIVKICY.  l.'7.» 

J^lace  of  Delii'cry. 

Where  the  contract  does  not  otherwise  provide,'*  the  place 
of  dcHvery  is  the  seller's  place  of  business,  or,  if  he  have  no 
place  of  business,  his  residence.'"  If  the  goods  are  to  be 
grown  or  manufactured,  the  place  of  delivery  is  the  farm  or 
factory."  "The  store  of  the  merchant,  the  shop  of  the  me- 
chanic, and  the  farm  or  granary  of  the  farmer,  at  which  the 
articles  sold  are  deposited  or  kept,  must  be  the  place  where  de- 
mand and  delivery  are  to  be  made,  when  the  contract  is  to  buy 
upon  demand,  and  is  silent  as  to  the  place."  '^  A  distinction 
is  made,  however,  in  some  of  the  cases  where,  though  the  place 
is  not  fixed,  the  seller  is  bound  to  deliver  on  or  before  a  certain 
day,  and  it  is  held  that  under  such  a  contract  the  seller  must 
5eek  the  buyer,  and  tender  the  goods,  or,  if  they  are  cumber- 
some, ask  him  within  a  reasonable  time  before  delivery  to  ap- 
point a  place.^*  These  cases  proceed  on  the  analogy  of  cer- 
tain cases  which  hold  that,  in  contracts  for  the  payment  of  a 
debt  in  goods,  if  the  goods  are  deliverable  on  demand  the  cred- 
itor must  be  the  actor,  but  that  if  they  are  deliverable  at  or 
witiiin  a  certain  time  the  debtor  must  be  the  actor;  but  it  seems 
that  even  where  the  time,  and  not  the  place,  i^  fixed,  the  better 
rule  is  that  passive  readiness  to  allow  the  buyer  to  take  the 
goods  is  all  that  is  required  of  the  seller.'"' 

8<  See  Hatch  v.  Oil  Co.,  100  U.  S.  124.  25  L,  Bd.  554;  Van  Vnlkcn- 
burg  V.  Gregg,  45  Neb.  054.  r,3  N.  \V.  !>40. 

3  8  Sousely  v.  Burns'  Adiu'r,  10  Bush  (Ky.)  87;  .Tanney  v.  SkN-por. 
.".0  Minn.  473.  IG  N.  W.  3G5;  r>obcloll  v.  Ilcpkins.  5  Cow.  (N.  Y.)  ".ir,; 
Rice  V.  Churchill.  2  Donio  (N.  Y.)  145.  Cf.  Mobile  Fruit  &  Trading 
Co,  T.  McGulre,  81  Minn.  232.  83  N.  ^Y.  8.33. 

Under  a  Code  providing  that,  when  a  contract  for  the  payment  or 
delivery  of  property  other  than  money  does  not  fix  a  place  of  pay- 
ment, the  maker  may  tender  It  at  the  place  where  the  payee  resides, 
when  a  contract  for  the  sale  of  cattle  fails  to  specify  the  place  of  de- 
livery. It  Is  at  the  residence  of  the  buyer.  Holtz  v.  Peterson,  98  lovpa, 
741,  62  N.  W.  19. 

88  Middlesex  Co.  v.  Osgood.  4  Gray  (Mass.)  447;  Goddard  v.  Binnoy, 
115  Mass.  450.  15  Am.  Hop.  112:  Tlamilton  v.  Calhoun.  2  \Vatts  (Pa.) 
139;  Bragg  v.  Beers,  71  Ala,  151;  Bliss  Co.  v.  Light  Co.,  149  N.  Y. 
300.  43  N.  K.  8.59. 

3  7  2  Kent,  Oomm.  505. 

38  Barr  v.  Myers.  3  Watts  &-  .«?.  (Pa.)  205;  Allen  v.  Woods,  24  Pa, 
70.     Cf.  Hapgood  v.  Shaw.  105  Mass.  276. 

39  2  Kent.  Comm.  500;   P.onj.  Sales.  §  082. 


276  PERFORMANCE   OP  CONTRACT.  (Ch.  8 

If  the  contract  is  for  the  sale  of  specific  goods  the  place  of 
delivery,  in  the  absence  of  express  agreement,  is  fixed  by  the 
situation  of  the  goods  at  the  time  of  the  contract,  at  least  if 
the  situation  is  known  to  the  parties.*" 

The  seller  may  be  bound,  however,  either  expressly  or  by  im- 
plication, to  notify  the  buyer  of  the  place  of  delivery  or  of  the 
readiness  of  the  goods,  in  which  case  the  buyer  is  not  in  de- 
fault until  after  he  has  received  notice.  Thus,  in  a  contract 
for  the  sale  of  goods  "ex  quay  or  warehouse,"  there  is  an  im- 
plied condition  that  the  seller  shall  give  notice  of  the  place  of 
storage.*'- 

On  the  other  hand,  the  buyer  may  be  bound  to  notify  the 
seller  of  the  place  of  delivery  before  the  seller  can  be  called  on 
to  deliver.  Thus,  if  the  agreement  is  to  deliver  on  board  the 
buyer's  ship,  the  buyer  must  name  the  ship,  and  give  notice  of 
his  readiness  to  receive  the  goods,  before  he  can  complain  of 
the  nondelivery.*^  So,  where  the  buyer  is  to  provide  cars,  he 
must  notify  the  seller,  before  the  latter  can  be  put  in  default.*' 

<o  Gray  v.  Walton,  107  N.  Y.  254,  14  N.  E.  191 ;  Smith  v.  Gillett, 
50  111.  290.  The  qualification  as  to  the  knowledge  of  the  parties  is 
found  in  English  Sale  of  Goods  Act,  §  29  (1).  See  also  Sales  Act,  § 
43  (1).  It  would  seem,  however,  that,  on  general  principles,  if  the 
goods  were  at  a  place  other  than  the  seller's  residence  or  place  of 
business,  the  parties  would  not  be  presumed  to  contract  with  refer- 
ence to  such  place,  unless  it  appeared  that  the  situation  of  the  goods 
was  known  to  them.  Delivery  to  a  carrier  at  the  place  where  the 
goods  are  at  the  time  of  sale  is  delivery  under  a  contract  silent  as  to 
the  place  of  delivery.  Perlman  v.  Sartorius,  162  Pa.  320,  29  Atl.  852, 
42  Am.  St.  Rep.  834. 

41  Da  vies  v.  McLean,  21  Wkly.  Rep.  264,  28  Law  T.  (N.  S.)  113. 

42  Armitage  v.  Insole,  14  Q.  B.  728;  Walton  v.  Black,  5  Houst.  (Del.) 
149.  But,  if  the  time  or  place  is  at  the  seller's  option,  he  must  give 
notice  thereof  before  the  buyer  is  under  any  obligation  to  name  the 
ship.    Dwight  v.  Eckert,  117  Pa.  490,  12  Atl.  32. 

4  3  Kunkle  v.  Mitchell,  56  Pa.  100;  Hocking  v.  Hamilton,  158  Pa. 
107,  115.  27  Atl.  836;  Bolton  v.  Riddle,  35  Mich.  13.  But  see  Council 
Bluffs  Iron  Worts  v.  Cuppey,  41  Iowa,  104,  where  the  seller  was  to 
deliver  railroad  ties  on  cars  to  be  furnished  by  the  buyer,  and  it  was 
held  that  the  seller  must  haul  the  ties  to  the  station,  and,  if  no  cars 
were  ready  to  receive  them,  deposit  them  near  the  track,  the  usual 
place  of  receiving  such  property,  before  he  could  show  performance. 
On  the  other  hand,  in  Smith  v.  Wheeler,  7  Or.  49,  33  Am.  Rep.  698, 
it  was  held  that  the  seller,  not  having  been  notified,  need  not  haul 


§§  83-85)       PLACE,  TIME,  AND    MANNER   OF    DELIVERY.  -77 

Where  the  buyer  is  bound  to  designate  the  place,  but  fails  to 
do  so,  it  is  enough  to  constitute  performance  by  the  seller  if 
he  has  the  goods  ready  at  the  time  fixed  by  the  contract.** 

Time  of  Delivery — Reasonable  Tivie. 

Where  the  seller  is  bound  to  send  the  goods,  but  the  contract 
is  silent  as  to  the  time,  he  is  allowed  a  reasonable  time.*''  If 
he  delays  unreasonably,  the  buyer  is  relieved  of  his  obligation 
to  receive  delivery.*®  What  is  a  reasonable  time  is  a  question 
of  fact  in  view  of  all  the  circumstances  attending  the  sale.*^  If 
the  contract  is  in  writing,  parol  evidence  of  the  facts  and  cir- 
cumstances attending  the  sale  is  admissible  in  order  to  deter- 
mine what  is  reasonable  time.**  Where  the  contract  expresses 
the  time,  the  question  is  one  of  construction,  and  therefore  for 
the  court.  When  the  seller  is  to  deliver  at  a  designated  place, 
but  the  time  is  not  fixed,  the  seller  must  notify  the  buyer  of  his 
readiness  to  deliver;*"  but,  if  the  buyer  is  to  designate  the 

uiacbinory  to  the  station,  as  be  would  uut  be  justitied  in  leaving  It  by 
the  wayside. 

**  Lucas  V.  Nlcbols,  5  Gray  (Mass.)  311;  Hunter  v.  Wetsell.  84  N. 
Y.  ."411,  38  Am.  liep.  544;  Lockliart  v.  Bousall,  77  Pa.  53;  Boyd  v. 
Gunnisou.  14  W.  Va.  1;  Weill  v.  Metal  Co.,  1S2  111.  128.  .54  N.  E.  1050. 
Wbere  tbe  seller  was  to  deliver  a  sbip  at  Portland,  and  tbe  buyer  af- 
ter notice  failed  to  designate  a  wbarf  or  other  place,  tender  of  deliv- 
ery at  a  safe  and  usual  anchorage  in  tbe  harbor  was  suthcient.  Lin- 
coln V.  Gallagher,  79  Me.  ISO.  S  Atl.  8S3. 

4  5  McHonry  v.  Bulifant,  207  Pa.  15.  5G  Atl.  22G. 

*o  Ellis  V.  Thompson,  3  Mees.  &  W.  445;  Blydenburgh  v.  Welsh, 
Baldw.  (U.  S.)  331,  Fed.  Gas.  No.  1,5,8:3;  Pope  v.  Manufacturing  Co., 
107  N.  y.  61.  13  N.  B.  502;  Boyd  v.  Gunnison.  14  W.  Va.  1;  Grant  v. 
Bank.  35  Mich.  515;  Tufts  v.  McClure,  40  Iowa,  317;  McGinnis  v. 
Johnson  Co.  (Xcb.)  104  N.  W.  SCO. 

*7  Eiiig  V.  Thompson,  3  Mees.  &  W.  445;  Pinney  v.  Railroad  Co., 
19  Minn.  251  (Gil.  211);  Stango  v.  Wilson,  17  Mich.  342;  Coon  v. 
Spaulding,  47  Mich.  ir.2.  10  N.  W.  183.  Contra.  Echols  v.  Railroad  Co.. 
.52  Miss.  r.lO;  Baglty  v.  Walker,  78  Md.  2.''.0.  27  Atl.  1033;  Fisher  v. 
Boynton,  87  Me.  305,  32  Atl.  905;  Eppens,  Smith  &  Wiemann  Co.  v. 
Littlojohn,  164  N.  Y.  187,  i>8  N.  B.  19.  52  L.  R.  A.  811. 

48  Ellis  V.  Thompson.  3  Mees.  &  W.  445.  But  where  the  contract 
1p  in  writing,  and  do(>s  not  state  the  time,  evidonce  of  a  contempo- 
raneous parol  agrooment  fixing  the  time  Is  inaduiissible.  Coon  y. 
Spaulding.  47  Midi.   in2.   10  X.  W.   183. 

<»  Cnillum  v.  Wagstaff,  48  Pa.  .300. 


278  PERFORMANCE    OF   CONTRACT.  (Ch.  8 

time,  the  seller  cannot  be  put  in  default  until  it  has  been  desig- 
nated."^" 

Where  the  seller  is  not  bound  to  send  the  goods,  it  would 
seem  that  the  buyer  has  a  reasonable  time  to  come  and  fetch 
them.'^  But  when  the  delivery  is  to  be  on  demand,  or  as  re- 
quired, the  buyer  is  not  in  default  until  after  the  seller  has  call- 
ed on  him  to  accept  delivery.^^  If  the  goods  are  to  be  manu- 
factured, it  seems  that  before  the  buyer  can  be  put  in  default 
the  seller  must  notify  him  that  the  goods  are  ready.  ^^ 

When  Time  is  Fixed. 

"In  determining  whether  stipulations  as  to  time  of  perform- 
ance of  a  contract  of  sale  are  conditions  precedent,  the  court 
simply  seeks  to  discover  what  the  parties  really  intended,  and 
if  time  appears,  on  a  fair  consideration  of  the  language  and 
the  circumstances,  to  be  of  the  essence  of  the  contract,  stipu- 
lations in  regard  to  it  will  be  held  conditions  precedent."  ^*  In 
mercantile  transactions,  however,  such  as  the  sale  of  goods, 
when  the  time  for  performance  is  fixed  by  the  contract,  time 
is  generally  held  to  be  of  the  essence  of  the  contract,  at  least 
so  far  as  concerns  the  time  of  delivery.  Where  one  of  the 
terms  of  the  contract  provides  for  the  time  of  shipment  or  de- 
delivery,  shipment  or  delivery  at  the  time  fixed  will  usually  be 
held  as  a  condition  precedent.  ^^  "In  the  contracts  of  mer- 
chants," said  Mr.  Justice  Gray,^^  "time  is  of  the  essence.  The 
time  of  shipment  is  the  usual  and  convenient  means  of  fixing 

80  Posey  V.  Scales,  55  Ind.  282;  Louisville,  N.  A.  &  C.  Ry.  Co.  v. 
Iron  Co.,  126  111.  294,  18  N.  E.  735.  And  see  Kingman  &  Co.  v.  Wagon 
Co.,  176  111.  545,  52  N.  E.  328. 

81  Mowry  v.  Kirk,  19  Ohio  St.  375. 

8  2  Jones  V.  Gibbons,  8  Exch.  920;    Cameron  v.  Wells,  30  Vt.  633. 

83  Where  the  seller  was  to  build  a  vessel,  and  deliver  it  at  one  of 
several  places  to  be  designated  by  the  buyer,  it  was  the  seller's  duty 
to  give  notice  when  it  was  finished,  so  that  the  buyer  might  designate 
the  place.    Spooner  v.  Baxter,  16  Pick.  (Mass.)  409. 

5*  Benj.  Sales,  §  593,  cited  with  approval  by  Folger,  J.,  in  Higgins 
V.  Railroad  Co.,  60  N.  Y.,  at  page  557. 

66Ellinger  v.  Comstock,  13  Ind.  App.  690,  41  N.  E.  351;  LeEferts 
V.  Weld,  167  Mass.  531,  46  N.  E.  107.  See,  also,  Redlands  Orange- 
Growers'  Ass'n  V.  Gorman,  161  Mo.  203,  61  S.  W.  820,  54  L.  R.  A.  718. 
Cf.  Coyne  v.  Avery,  189  111.  378,  59  N.  E.  788;   post,  p.  287. 

58  Norrington  v.  Wright,  115  U.  S.  188,  6  Sup.  Ct.  12,  29  L.  Ed.  36d. 


§§  83-85)       PLACE,  TI.MK,   AND    MANNKU    OF    DKI.I  V  Ki:V.  279 

the  probahle  time  of  arrival,  with  a  view  to  proviihnt;  funds  to 
pay  for  the  goods,  or  of  fulfilhiig  contracts  with  tliird  persons. 
A  statement  descriptive  of  the  subject-matter,  or  of  some  ma- 
terial incident,  such  as  the  time  or  place  of  shipment,  is  ordi- 
narily to  be  regarded  as  *  *  *  a  condition  precedent,  on 
the  failure  of  which  the  party  aggrieved  may  repufliate  the 
whole  contract."  In  this  country,  stipulations  as  to  the  time 
of  payment,  also,  are  generally,  although  not  uniformly,  re- 
garded as  of  the  essence  of  the  contract. ''^  A  different  rule  has 
prevailed  in  England."  where  the  Sale  of  Goods  Act  now  pro- 
vides that,  "unless  a  different  intention  appears  from  the  terms 
of  the  contract,  stipulations  as  to  time  of  payment  are  not 
deemed  to  be  of  the  essence  of  a  contract  of  sale."  ^' 

Although  at  common  law  "month"  generally  means  "lunar 
month,"  in  mercantile  contracts  it  is  construed  as  meaning 
"calendar  month."  '"  When  a  certain  number  of  days  is  al- 
lowed for  delivery,  they  are  counted  as  consecutive  days,  and 
include  Sundays,"'  though  if  the  last  day  falls  on  Sunday  it  is 
not  generally  counted.'*  The  day  of  the  contract  is  not  in- 
cluded in  counting  the  number  of  days." 

When  the  time  and  place  are  fixed,  a  delivery  at  such  time 
and  place  is  good  though  the  buyer  be  absent.'* 

Hour  of  Delivery. 

A  tender  of  delivery  on  the  last  day  at  the  place  designated 
is  good,  even  in  the  absence  of  the  buyer,  provided  it  be  made 

»T  See  cases  cited  note  112,  Infra. 

BSMartindale  v.  Sniitlj,  1  Q.  B.  3S9,  30.") ;  Meorsey  Steel  &  Iron 
Co.  V.  Naylor,  9  App.  Cas.  434,  444. 

69  Section  10  (1). 

60  Webb  V.  Fairmaner.  3  Mees.  &  W.  473;  Churchill  v.  Merchants' 
Bank,  10  Pick.  (Mass.)  532;  Thomas  v.  Shoemaker,  6  Watts  &  S. 
(Pa.)  170.    Tliis  is  sometimes  regulated  by  statute. 

81  Brown  v.  Johnson,  10  Mees.  &  W.  331.  See,  also,  cases  cited  In 
note  02. 

0  2  Salter  v.  Burt.  20  Wend.  (N.  Y.)  205,  32  Am,  Dec.  530;  Sands  v. 
I>ynn.  IS  Conn.  IS:    Rair.'tt  v.  Allen,  10  Ohio.  42G. 

83  Webb  V.  Fairmaner,  3  Mees.  &  W.  473;  Bemis  v.  I^onard,  118 
Mass.  502,  19  Am.  Kep.  470;  Weeks  v.  Hull,  19  Conn.  370,  50  Am. 
Deo.  240. 

0*  Barton  v.  McKehvay,  22  N.  J.  Law,  105;  Case  v.  Green,  6 
Watts  iPa.)  2(52,  00  Am.  Dec.  311. 


280  PERFORMANCE  OF  CONTRACT.  (Ch.  8 

within  such  time  before  sunset  that  the  deHvery  can  be  com- 
pleted by  dayHght.*^^  A  tender  at  a  later  hour  is  good  if  the 
buyer  be  found  at  the  designated  place,  or  in  cases  where  de- 
livery may  be  made  to  the  buyer  wherever  he  happens  to  be, 
provided  the  delivery  can  be  completed  before  midnight;^* 
though  even  in  the  latter  case,  if  daylight  is  necessary  to  en- 
able the  buyer  to  make  a  proper  inspection,  it  seems  that  the  de- 
livery must  be  made  in  time  to  enable  him  to  make  such  ex- 
amination by  daylight.  ^^ 

But,  where  the  time  and  place  of  delivery  are  fixed,  it  has 
been  held  that  the  mere  transportation  of  the  goods  to  that 
place  is  not  a  sufficient  delivery,  without  the  presence  of  the 
seller  or  his  agent  to  make  delivery  and  receive  the  price.® ^ 
The  English  Sale  of  Goods  Act  provides  that  "what  is  a  rea- 
sonable hour  is  a  question  of  fact."  ®* 

Expenses  of  Putting  into  Deliverable  State. 

The  Enghsh  Sale  of  Goods  Act  provides:  "Unless  other- 
wise agreed,  the  expenses  of  and  incidental  to  putting  the 
goods  into  a  deliverable  state  must  be  borne  by  the  seller."  ^** 
This  provision  is  said  by  Judge  Chalmers  to  be  declaratory  of 
the  law.^^' 

6  5  startup  V.  Macdonald,  6  Man.  &  G.  593,  624,  per  Parke,  B. 

66  Startup  V.  Macdonald,  6  Man.  &  G.  593;  Berry  v.  Nail,  54  Ala. 
446. 

67  Croninger  v.  Crocker,  62  N.  Y.  151,  158. 

6  8  Catlin  V.  Jones  (Or.)  85  Pac.  515. 

69  Section  29  (4),  followed  in  Sales  Act,  §  43  (4).  Judge  Chalmers 
observes:  "This  subsection  alters  the  law  in  so  far  as  it  makes 
what  is  a  reasonable  hour  a  question  of  fact.  It  was  formerly  a 
question  of  law,  and  some  highly  technical  rules  for  determining  it 
were  laid  down  by  Lord  Weuslerdale"  (in  Startup  v.  Macdonald,  su- 
pra).   Chalm.  Sale  of  Goods  Act  (6th  Ed.)  72. 

7  0  Section  29  (5).    Followed  in  Sales  Act,  §  43  (5). 

71  Chalmers,  Sale  of  Goods  Act  (6th  Ed.)  p.  72,  citing  Story, 
Sales,  §  2y7a.  Cf.  Benj.  Sales  (5th  Eng.  Ed.)  694.  See  Playford  v. 
fiercer,  22  Law  T.  41;   Cole  v.  Kerr,  20  Vt.  21. 


§§  80-88)  DELIVEUY    OF    WRONG    QUANTITY.  2S1 


DELIVERY  OF   WRONG    QUANTITY. 

80.  Whore  the  seller  delivers  to  the  bnyer  a  quantity  of  koocIs 
larger  than  he  contracted  to  sell,  the  buyer  may  ac- 
cept the  goods  included  in  the  contract,  and  reject  the 
rest,  or  [i£  he  cannot  separate  the  goods  included  in 
the  contract  from  the  other  goods  without  incurring 
trouble  or  expense]  he  may  reject  the  whole.  If  he 
accepts  tho  whole,  he  must  pay  for  them  at  the  con- 
tract rate.T2 

87.  Where  tho  seller  delivers  to  the  buyer  the  goods  he   con- 

tracted to  sell  mixed  with  goods  of  a  different  descrip- 
tion not  included  in  the  contract,  the  buyer  may  ac- 
cept the  goods  w^hich  are  in  accordance  w^ith  the  con- 
tract, and  reject  the  rest,  or,  he  may  reject  the  w^hole."^ 

88.  Where  the  seller  delivers  to  the  buyer  a  quantity  of  goods 

less  than  he  contracted  to  sell,  the  buyer  may  reject 
them;  but,  if  the  buyer  acca|)ts  them,  it  is  generally 
held  that  he  must  pay  for  them,  though  some  courts 
hold  that  he  need  not  pay  for  them  unless  he  has  oth- 
erwise xiraived  his  right  to  a  performance  of  the  xrhole 
contract.^* 

DcHz'cry  of  Too  Much. 

The  seller  does  not  comply  with  his  contract  by  a  tender  or 
delivery  of  a  greater  quantity  than  the  contract  requires.  Thus 
it  was  held  that,  where  the  contract  called  for  200  bales,  an 
allegation  that  the  seller  shipped  206  bales  and  that  the  buyer 
refused  to  receive  the  same  or  any  part  thereof  was  bad,  for 
want  of  an  allegation  that  the  seller  was  ready  to  deliver  200 
only.''^  And  where  the  order  was  for  2  dozen  wine,  and  4 
dozen  were  sent,  it  was  held  that  the  buyer  might  return  the 
whole.^®     So  where  the  order  was  for  10  hogsheads  of  claret, 

72  See  Sale  of  Goods  Act,  §  30  (2);  Sales  Act,  §  44  (2).  Cf.  Sale 
of  Goods  Act,  §  30  (4);    Sales  Act,  §  44  (4). 

The  qualification  Introduced  by  the  words  Included  in  brackets 
applies  only  in  ccrfaiu  jurisdictions.     See  post,  p.  282. 

^^  Sale  of  Goods  Act.  §  30  (3);    Sales  Act,  §  44  (3). 

7  4  See  Sale  of  Goods  Act,  §  30  (1);   Sales  Act,  8  44  (1). 

7s  Dixon  V.  Fletcher.  3  Mees.  &  W.  14C. 

7  6  Hart  V.  Mills,  13  Mees.  &  W.  85. 


282  PERFORMANCE    OF   CONTRACT.  (Ch.  8 

and  the  seller  sent  15,  it  was  held  that  the  contract  was  not  per- 
formed ;  the  court  saying  that  the  buyer  cannot  tell  which  are 
the  10  that  are  to  be  his,  and  that  it  is  no  answer  to  the  objec- 
tion to  say  that  he  may  choose  which  10  he  likes,  for  that 
would  be  to  force  a  new  contract  upon  him.'^^ 

In  this  country,  while  the  buyer  is,  as  a  general  rule,  entitled 
to  refuse  the  whole,  if  the  quantity  tendered  exceeds  the  quan- 
tity specified,''^  some  cases  hold  that,  if  no  additional  trouble 
or  expense  is  cast  upon  the  buyer  by  the  selection  or  separation, 
the  delivery  of  a  greater  amount,  with  the  request  to  select  or 
separate  from  the  mass  the  amount  required,  is  sufficient.''^ 
Thus  where  the  contract  was  for  5,000  barrels  of  oil  to  be  de- 
livered in  cars  in  bulk,  but  it  was  not  the  seller's  duty  to  pump 
the  oil  from  the  cars,  it  was  held  that  a  tender  of  5,891  barrels 
in  bulk  from  which  the  buyer  could  take  the  required  amount 
was  good.^° 

If  a  greater  amount  is  sent  in  performance  of  the  contract, 
and  not  for  the  purpose  of  charging  the  buyer  with  the  excess, 
the  delivery  may  be  good.*^  If  a  greater  amount  is  tendered 
for  the  purpose  of  charging  the  buyer  with  the  excess,  and  he 
accepts  the  whole,  he  must  pay  for  the  excess  at  the  contract 
rate,  such  a  delivery  operating  as  a  proposal  for  a  new  con- 

77  Cunliffe  v.  Harrison,  6  Bxch.  903. 

'8  Rommel  v.  Wingate.  lOS  Mass.  327;  Stevenson  v.  Burgin,  49 
Pa.  36;  Norrington  v.  Wright,  115  U.  S.  188,  204,  6  Sup.  Ct.  12,  29 
L.  Ed.  366,  per  Gray,  J.;  Perry  v.  Iron  Co.,  16  R.  I.  318,  15  Atl. 
87;  Clark  v.  Baker,  11  Mete.  (Mass.)  186,  45  Am.  Dec.  199;  Croninger 
V.  Crocker,  62  N.  Y.  151;  Hoffman  v.  King,  58  Wis.  314,  17  N.  W. 
130  (lumber  must  be  so  assorted  and  separated  from  lumber  of 
other  dimensions  or  of  inferior  quality  as  to  be  capable  of  Identi- 
fication); Kalamazoo  Corset  Co.  v.  Simon  (C.  C.)  129  Fed.  144.  See 
ante,  p.  150. 

7  9  Lockhart  v.  Bonsall,  77  Pa.  .53;  Brownfield  v.  Johnson,  128  Pa. 
254,  208,  18  Atl.  543,  6  L.  R.  A.  48;  Iron  Cliffs  Co.  v.  Buhl.  42 
Mich.  86,  3  N.  W.  269  (deposit  of  greater  amount  of  ore  from 
which  buyer  could  take  contract  quantity);  Ganson  v.  Madigan, 
9  Wis.  140;  Id.,  13  Wis.  67.  See,  also,  Croninger  v.  Crocker,  62  N. 
Y.  151. 

80  Ixickhart  v.  Bonsall,  77  Pa.  53. 

81  Downer  v.  Thompson,  6  Hill  (N.  Y.)  208.  Cf.  Williamson  v. 
Lumber  Co.,  42  Or.  153,  70  Pac.  387,  532. 


§§  86-88)  DELIVERY    OF    WRONG    QUANTIXr.  283 

tract,*-  but  it  seems  tliat  he  may  accept  the  part  contracted  for 
and  reject  tlie  residue.*' 

Delivery  of  Goods  Mixed  zvitli  Other  Goods. 

If  the  goods  ordered  are  sent  mixed  with  other  goods,  the 
same  principles  govern.  Where  Ruabon  coals  were  ordered, 
and  a  certain  quantity  of  Ruabon  coals  were  shot  into  a  heap 
with  coals  of  a  dilTcrent  sort,  the  delivery  was  held  bad."^ 
And  where  crockery  was  sent  packed  in  a  crate  with  other 
crockery,  although  the  crockery  ordered  was  perfectly  dis- 
tinguishable, the  same  rule  was  applied,  upon  the  ground  that 
the  seller  had  no  right  to  impose  on  the  buyer  the  onus  of  un- 
packing and  separating.®'^  The  rule  applies  where  damaged 
goods  or  goods  of  an  inferior  quality  are  mixed  with  the  bulk.*" 

Delivery  of  Too  Little. 

It  is  universally  conceded  that  the  buyer  need  not  accept  less 
than  the  entire  quantity  of  the  goods  contracted  for,  and  that 
if  the  seller  delivers  a  smaller  quantity  the  buyer  may  reject 
them.®^  But  it  is  held  in  most  jurisdictions  that,  if  the  buyer 
accepts  a  partial  delivery,  he  must  pay  for  the  goods  accepted, 

82  Cimliffe  V.  Harrison,  6  Exch.  903,  9CM3,  per  Parke,  B.  See,  also, 
Levino  v.  Moore  Co.,  1*7  App.  Div.  lOD,  89  N.  Y.  Supp.  573. 

83  Sale  of  CJoods  Act,  §  30  (2);  Sales  Act,  §  44  (2);  Larkin  v. 
Lumber  Co..  42  Mich.  29G,  3  N.  W.  904.  But  see  Oruiond  v.  lleu- 
derson,  77  Miss.  34,  24  South.  170. 

84  Nicholson  V.  Bradfleld  Union,  L.  i:.  1  Q.  B.  G20,  35  Law  J.  Q. 
B.  176. 

8B  Levy  V.  Green,  8  El.  &  Bl.  575,  27  Law  J.  Q.  B.  Ill,  28  Law 
J.  Q.  B.  319. 

8  8  Clark  V.  Baker,  11  Mete.  (Mass.)  186,  45  Am.  Dec.  199;  Hoffman 
V.  King,  58  Wis.  314,  17  N.  W.  136.  See,  also.  Walker  v.  Davis, 
05  N.  H.  170,  172,  18  Atl.  190. 

87  Cleveland  Rolling  Mill  v.  Khodes,  121  U.  S.  255,  7  Sup.  Ct. 
882,  30  L.  Ed.  920;  Saliuou  v.  Boykiu,  GO  Md.  541,  7  Atl.  701;  Bock- 
ford,  R.  L  &  St.  L.  R.  Co.  v.  Lent,  03  111.  288;  Smith  v.  Lewis. 
40  lud.  98;  Hill  v.  Heller,  27  Hun  (N.  Y.)  41G;  Crowl  v.  Gooden- 
berger,  112  Mich.  083,  71  N.  W.  485;  Trice  v.  Eugolke,  68  N.  J. 
Law,  507,  53  Atl.  098;  Newell  v.  New  Holstein  Canning  Co.,  119 
Wis.  635,  97  N.  W.  487.     See,  also,  cases  cited  in  note  88. 

"Unless  otherwise  agreed,  the  buyer  of  goods  is  not  bound  to 
accept  deliverj-  tliereof  by  installments."  Sale  of  Goods  Act,  §  31 
(1);  Sales  Act,  §  45  (1).  See  Reuter  v.  Sala,  4  C.  P.  Div.  239;  ante, 
P-  57. 


284  PERFORMANCE  OF  CONTRACT.  (Ch.  8 

although  the  seller  fails  to  deliver  the  rest  of  the  goods.®® 
The  seller  may  not  sue  for  the  price  of  the  portion  of  the  goods 
delivered  before  the  time  fixed  for  the  delivery  of  the  rest,®® 
but  after  the  expiration  of  such  time  he  may  sue.®*'  In  such 
case,  however,  the  buyer  may  reduce  the  amount  of  the  seller's 
recovery  by  way  of  recoupment,  by  showing  that  he  has  sus- 
tained damages  by  the  seller's  failure  fully  to  perform  the  con- 
tract." 

Some  courts,  however,  deny  the  seller's  right  to  recover  for 
a  partial  delivery.  This  was  held  in  an  early  case  ®^  in  New 
York,  in  which  the  contract  was  for  100  tons  of  hay,  to  be  de- 
livered between  certain  dates,  and  to  be  paid  for  at  a  certain 
price  per  ton,  part  in  advance,  and  the  residue  when  the  whole 


8  8  Shipton  V.  Casson,  5  Barn.  &  C.  378,  382,  per  Lord  Tenterden; 
Oxendale  v.  Wetherell,  9  Barn.  &  C.  386;  Morgan  v.  Gatli,  3 
Hurl.  &  C.  748,  34  Law  J.  Exch.  165;  Bowker  v.  Hoyt,  18  Pick. 
(Mass.)  555;  Hedden  v.  Roberts,  134  Mass.  40,  45  Am.  Rep.  276; 
Roberts  v.  Beatty,  2  Pen.  &  W.  (Pa.)  63,  21  Am.  Dec.  410;  Clark  v. 
Moore,  3  Mich.  55;  Booth  v.  Tyson,  15  Vt.  515;  Richards  v.  Shaw, 
G7  111.  222;  Polhemus  v.  Heiman,  45  Cal.  573;  Churchill  v.  Holton, 
38  Minn.  519,  38  N.  W.  611;  Saunders  v.  Short,  86  Fed.  225,  30 
C.  C.  A.  462;  Pittsburgh  Plate  Glass  Co.  v.  Kerlin  Bros.  Co.,  122 
Fed.  414,  58  C.  C.  A.  648;  Briggs  v.  Morgan,  104  Mo.  App.  62,  78 
S.  W.  295;  Gibbony  v.  R.  W.  Wayne  Co.,  141  Ala.  300,  37  South. 
426 ;  Jlead  v.  Rat  Portage  Lumber  Co.,  93  Minn.  343,  101  N.  W.  299. 
"He  must  pay  for  them  at  the  contract  rate."  Sale  of  Goods  Act, 
§  30  (1).  Cf.  Sales  Act,  §  44  (1).  See  Brady  v.  Cassidy,  145  N.  Y. 
171,  39  N.  E.  814.  Tlie  price  agreed,  in  the  absence  of  other  evi- 
dence, may  be  taken  as  the  basis  for  apportioning  the  seller's 
damages.    Churchill  v.  Holton,  supra. 

89  Waddington  v.  Oliver,  2  Bos.  &  P.  (N.  R.)  61. 

90  Colonial  Ins.  Co.  v.  Adelaide  M.  Ins.  Co.,  12  App.  Cas.  128,  at 
page  138.  "Where  there  is  an  entire  contract  to  deliver  a  large 
quantity  of  goods,  consisting  of  distinct  parcels,  within  a  specified 
time,  and  the  seller  delivers  part,  he  cannot,  before  the  expiration 
of  that  time,  bring  an  action  to  recover  the  price  of  the  part  de- 
livered, because  the  purchaser  may,  if  the  vendor  fails  to  complete 
the  contract,  return  the  part  delivered.  But,  if  he  retain  the  part 
delivered  after  the  seller  has  failed  in  performing  his  contract,  the 
latter  may  recover  the  value  of  the  goods,  which  he  has  so  deliver- 
ed."   Oxendale  v.  Wetherell,  9  Barn.  &  C.  386,  per  Parke,  J. 

91  Bowker  v.  Hoyt,  18  Pick.  555;    Richards  v.  Shaw,  67  111.  222. 
02  Champlin  v.   Rowley,   18  Wend.    (N.   Y.)    187;    Id.,   H  Wend. 

(N.  Y.)  258. 


§§  86-88)  DKMVKKV    OK    WKONO    QUANTITY.  285 

sliould  be  delivered.  Tlie  seller  delivered  only  52  tons,  and 
after  the  expiration  of  the  time  fixed  for  the  delivery  of  the 
wiiole  brought  action  to  recover  for  the  quantity  delivered  at 
the  stipulated  price,  but  it  was  hold  that  there  could  be  no  re- 
covery, the  buyer  not  having  waived  or  prevented  a  full  per- 
formance. This  case  has  been  followed  in  New  York  and  in 
some  other  jurisdictions."^  A  limitation  of  the  doctrine 
enunciated  in  that  case  has,  however,  been  introduced  in  a 
later  New  York  case,®*  in  which  the  contract  was  for  the  de- 
livery of  G9i)  boxes  of  glass  at  one  time,  and  the  buyer  accept- 
ed the  delivery  of  a  part,  without  knowledge  that  the  rest  was 
not  to  be  delivered,  but  without  any  reservation.  It  was  held 
that  the  seller  could  recover  for  the  glass  delivered.  The  case 
was  distinguished  on  the  ground  that  in  the  earlier  case,  the 
hay  being  deliverable  in  parcels,  the  buyer  could  not  reject  a 
partial  delivery,  and  hence  there  was  no  waiver  of  the  condi- 
tion that  the  whole  must  be  delivered ;  but  that  in  the  case  at 
bar,  the  delivery  of  the  whole  being  required  to  be  made  at  one 
time,  the  buyer  could  decline  to  receive  a  partial  delivery,  and 
that  consequently  acceptance  of  a  partial  delivery  operated  as 
a  waiver  of  the  condition. 

"More  or  Less"— "About" 

When  the  contract  states  the  amount  to  be  delivered  with 
the  qualification  of  the  words  "more  or  less,"  "about,"  or 
words  of  similar  import,  the  seller  is  allowed  a  certain  latitude 
in  respect  to  the  quantity.  The  following  rules  have  been  laid 
down  by  the  supreme  court  of  the  United  States : '"  (1)  When 
the  goods  are  identified  by  reference  to  independent  circum- 
stances, such  as  an  entire  lot  in  a  certain  warehouse,  or  all  that 
may  be  manufactured  in  a  certain  establishment,  or  that  may 
be  shipped  in  a  certain  vessel,  and  the  quantity  is  named  with 
such  words  of  qualification,  the  contract  applies  to  the  specific 

»s  Catlin  v.  Tobins,  2G  N.  Y.  217,  84  Am.  Dec.  183;  Kela  v.  Tup- 
per,  52  N.  Y.  550;  Nightingale  v.  Eiseman,  121  N.  Y.  288.  24  N.  E. 
475.  Haslack  v.  Mayers,  20  N.  J.  Law,  284;  Witherow  v.  Withcrow, 
IG  Ohio,  238.     See  Iloklen  Steam  Mill  v.  Westervelt,  07  Me.  44G. 

'■'*  Avery  v.  Willson,  81  N.  Y.  341.  37  Am.  Rep.  503;  See  Brady  v. 
("assidy,  145  N.  Y.  171,  39  N.  E.  814;  Cbm-chill  v.  lloltou,  38  Minn. 
519,  38  N.  W.  611. 

8  8  Brawley  v.  U.  S.,  00  U.  S.  108,  24  L.  Ed.  <;22. 


286  PERFORMANCE  OF  CONTRACT.  (Ch.  8 

lot,  and  the  naming  of  the  quantity  is  not  regarded  as  a  war- 
ranty, but  only  as  an  estimate  of  the  probable  amount,  in  ref- 
erence to  which  good  faith  is  all  that  is  required  by  the  party 
making  it.^*  (2)  Where  no  such  independent  circumstances 
are  referred  to,  and  the  agreement  is  to  furnish  goods  to  a  cer- 
tain amount,  the  quantity  specified  is  material,  and  governs 
the  amount;  and  the  words  of  qualification  are  only  for  the 
purpose  of  providing  against  accidental  variations  arising  from 
slight  and  unimportant  excesses  or  deficiencies.^''  (3)  In  the 
last  case,  however,  if  the  words  of  qualification  are  supple- 
mented by  other  stipulations  or  conditions  which  give  them  a 
broader  scope,  or  more  extensive  significance,  the  contract  is 
governed  by  such  added  stipulations  or  conditions.  The  case 
in  which  these  rules  were  stated  fell  under  the  last  rule.^® 
The  contract  was  with  the  government  for  880  cords  of  wood, 
"more  or  less,"  as  should  be 'determined  to  be  necessary  by  the 
post  commander  for  the  regular  supply,  in  accordance  with 
army  regulations,  of  the  garrison  of  a  certain  post  for  one 
year,  and  the  post  commander  at  once  notified  the  seller  that 
only  40  cords  would  be  required,  and  it  was  held  that  the  gov- 
ernment was  liable  for  only  40  cords. 

8  6  McConnel  v.  Murphy,  L.  E.  5  P.  C.  203;  McLay  v.  Perry,  44 
Law  T.  (N.  S.)  152;  Pembroke  Iron  Co.  v.  Parsons,  5  Gray  (Mass.) 
589;  Navassa  Guano  Co.  v.  Guano  Co.,  93  Ga.  92,  18  N.  E.  1000; 
Morris  v.  Wibaux,  159  111.  627,  43  N.  E.  837. 

97  Norrington  v.  Wright,  115  U.  S.  188,  6  Sup.  Ct  12,  29  L.  Ed. 
366;  Creighton  v.  Comstock,  27  Ohio  St.  548;  Clapp  v.  Thayer,  112 
Mass.  296;  Cockerell  v.  Aucompte,  26  Law  J.  C.  P.  194;  United 
States  V.  Pine  River  L.  &  L  Co.,  89  Fed.  907,  32  O.  C.  A.  406. 

The  delivery  and  receipt  of  4.034  tons  of  coal,  under  a  contract 
for  the  delivery  and  acceptance  of  "about  5,000  tons,"  does  not  so 
complete  the  contract  as  to  entitle  the  vendee  for  that  reason  to  re- 
fuse a  tender  of  the  remaining  366  tons.  Moore  v.  United  States, 
196  U.  S.  157,  25  Sup.  Ct.  202,  49  L.  Ed.  428. 

98  Brawley  v.  U.  S.,  96  U.  S.  108,  24  L.  Ed.  622;  See,  also,  Call- 
meyer  v.  Mayor,  etc.,  83  N.  Y.  116;  Tancred  y.  Steel  Co.,  15  App. 
Ct  125. 


bi))  DKI.IVKKY    BY    INhTAI.I.MKNTS.  287 


DELIVERY  BY  INSTALLMENTS. 

89.  Wlicrc  there  is  a  coutract  for  the  Bale  of  Koods  to  be  de- 
livered iu  iustnllmcuts,  whiek  arc  to  be  separately  paid 
for,  and  tlic  seller  luakcs  defcctiTe  dcliTcrica  iu  rcsiiect 
to  one  or  more  installments,  or  the  buyer  ncf;lecta  or 
refuses  to  take  delivery  or  to  pay  for  one  or  more  in- 
stallments, the  authorities  differ. 

(a)  According  to    the   more    recent    English    decisions   and   to 

some  decisions  in  this  country,  it  is  a  question,  in  each 
case  depending  on  the  terms  of  the  contract  and  the 
circumstances  of  the  case,  %vhether  the  breach  of  con- 
tract is  a  repudiation  of  the  \irhole  contract,  or  virheth- 
er  it  is  a  severable  breach,  giving  rise  to  a  claim  for 
compensation,  but  not  to  a  right  to  treat  the  ^vholc 
contract  as  repudiated.^" 

(b)  According    to    the    \7eight    of    authority    in    the    United 

States,  a  material  breach  in  respect  to  the  delivery  of 
any  installment,  or  in  respect  to  taking  delivery  or 
paying  for  any  installment,  gives  the  other  party  a 
right  to  repudiate  the  xvhole  contract.^ oo 

Rule  in  England. 

It  is  impossible  to  reconcile  the  English  decisions  on  this  sub- 
ject.^*'^  some  of  which  have  held  that  the  refusal  to  deliver  or 
to  accept  a  particular  installment  is  a  breach  going  to  the  root 
of  the  contract,^"*  and  others  of  which  have  held  the  con- 
trary.^"^     The  leading  case  in  the  affirmative  is  ?Ioare  v.  Ren- 

»»  Sale  of  Goods  Act,  §  31  (2).  See  Benj.  Sales  (5tb  Eng.  Ed.) 
723. 

100  Sales  Act,  §  45  (2),  provides:  "It  depends  In  each  case  on  the 
terms  of  the  contract  and  the  circumstauces  of  the  case  vfhetlier 
the  breach  of  contract  is  so  material  as  to  justify  the  Injured  party 
in  refusing  to  proceed  further  and  suing  for  damages  for  breach  of 
the  entire  contract,  or  whether  the  breach  Is  severable,  giving  rise 
to  a  claim  for  compensation,  but  not  to  a  right  to  treat  the  whole 
contract  as  broken."  Prof.  Williston  says  that  this  Is  in  accord  with 
the  weight  of  American  authority,  cltiiig  Norringtou  v.  Wright,  liri 
U.  S.  JS8,  6  Sup.  Ct  12,  29  L.  Ed.  3GG ;  14  Ilarv.  L.  Kev.  323. 

101  Benj.  Sales,  §§  593,  593a;  Chalm.  Sale  of  Goods  Act  (Gth  Ed.) 
p.  74. 

102  Withers  v.  Reynolds,  2  Barn.  &  Adol.  882;  Hoare  v.  Rennle. 
5  Hurl.  &  N.  19,  29  Law  J.  Exoh.  73;  Houck  v.  Muller,  7  Q.  B.  Div. 
92. 

loa.Tonassohn  v.  Young,  4  Best  &  S.  29G.  32  I^w  J.   Q.   B.  ."85; 


2S8  PERFORMANCE  OF  CONTRACT.  (Ch.  8 

nie.^°*  In  that  case  the  defendant  agreed  to  buy  from  the  plain- 
tiff 667  tons  of  iron,  to  be  shipped  from  Sweden  in  about  equal 
portions  in  each  of  the  months  of  June,  July,  August,  and  Sep- 
tember, and  the  plaintiff  shipped  only  20  tons  in  June,  which 
the  defendant  refused  to  accept.  It  was  held  that  delivery  at 
the  time  specified  was  a  condition  precedent,  and  that  the  plain- 
tiff" could  not  maintain  an  action  against  the  defendant  for  not 
accepting.  The  leading  case  in  the  negative  is  Simpson  v. 
Crippin.^"^  In  that  case  the  defendant  had  agreed  to  supply 
the  plaintiff  with  6,000  or  8,000  tons  of  coal,  to  be  delivered 
in  the  plaintiff's  wagons  at  the  defendant's  colliery  in  equal 
monthly  quantities  during  the  period  of  12  months  from  July 
1st.  During  July  the  plaintiff  sent  wagons  for  158  tons  only, 
and  on  the  1st  of  August  the  defendant  wrote  that  the  contract 
was  canceled  on  account  of  the  plaintiff's  failure  to  send  for 
the  full  monthly  quantity  in  the  preceding  month.  It  was  held, 
in  an  action  on  the  defendant's  refusal  to  go  on  with  the  con- 
tract, that  the  breach  in  failing  to  send  wagons  in  sufficient 
numbers  in  the  first  month,  though  a  ground  for  compensa- 
tion, did  not  justify  the  defendant  in  rescinding  the  contract. 
The  rule  has  been  finally  settled  in  England  as  above  stated 
by  Mersey  Steel  &  Iron  Co.  v.  Naylor,^"^  in  which  the  point 
decided  was  that  failure  of  the  buyer  to  pay  for  the  first  in- 
stallment upon  delivery,  unless  the  circumstances  evince  an 
intention  on  his  part  to  be  bound  no  longer  by  the  contract, 
does  not  entitle  the  seller  to  rescind. 

Rule  in  the  United  States. 

In  this  country  the  same  conflict  of  authority  has  existed, 
some  cases  substantially  following  Hoare  v.  Rennie,^°^   and 

Simpson  v.  Crippin,  L.  R.  8  Q.  B.  14;  Freeth  v.  Burr,  L.  R.  9  C. 
P.    208. 

104  5  Hurl.  &  N.  19,  29  Law  J.  Bxch.  73. 

106  L.  R.  8  Q.  B.  14. 

106  9  App.  Cas.  4.34,  affirming  9  Q.  B.  Div.  648. 

10-  Xorrington  v.  Wrlglit,  115  U.  S.  188,  6  Sup.  Ct.  12,  29  L.  Ed. 
366;  Cleveland  Rolling  Mill  v.  Rhodes,  121  U.  S.  255,  7  Sup.  Ct.  882, 
30  L.  Ed.  920;  Pope  v.  Porter,  102  N.  Y.  366,  7  N.  E.  304;  Clark 
V.  Wheeling  Steel  Works,  3  C.  C.  A.  600,  53  Fed.  494;  Peace  River 
Phosphate  Co.  v.  Grafflin  (C.  C.)  58  Fed.  550;  King  Philip  Mills 
V.  Slater,  12  R.  I.  82,  34  Am.  Rep.  603;    Rugg  v.  Moore,  110  Pa. 


§  89)  DEI.IVKKV    BY    INSTALLMENTS.  289 

Others  Simpson  v.  Crippin.^*"  Tlie  case  of  Norrinpton  v. 
Wright,'""  in  the  Suprtine  Court  of  the  United  States,  how- 
ever, has  gone  far  to  establish  the  rule  in  this  country  in  con- 
formity with  the  first  of  these  cases.  In  Norrington  v.  Wright 
the  contract  was  for  the  sale  of  "5,000  tons  of  iron  rails,  for 
shipment  from  European  port  or  ports,  at  the  rate  of  about  1,- 
000  tons  per  month,  beginning  February,  1880,  but  whole  con- 
tract to  be  shipped  before  August,  1880,  at  $15  per  ton,  ex 
ship  Philadelphia,  settlement  cash  on  presentation  of  bills," 
etc.  It  was  held  that  the  seller  was  bound  to  ship  1,000  tons 
in  each  month,  and  that  only  400  tons  having  been  shipped  in 
February,  and  885  tons  in  March,  the  buyer,  although  he  had 
paid  for  the  February  shipment  in  ignorance  of  the  defective 
shipments  in  that  month  and  in  March,  had  the  right  to  rescind 
the  whole  contract  for  the  defective  deliveries  in  respect  to  the 
first  installments.  The  decision  rests  on  the  ground  that  in  con- 
tracts of  merchants  time  is  of  the  essence,  and  that  the  ship- 
ment at  the  time  specified  in  the  contract  was  a  condition  pre- 
cedent, on  failure  of  which  the  buyer  might  rescind  the  whole 
contract.  The  court  reviews  the  later  English  cases,  and  pre- 
fers the  doctrine  of  Iloare  v.  Rennie  to  that  of  Simpson  v. 
Crippin,  both  on  principle  and  authority.  It  is  to  be  noted 
that  Gray,  J-,  in  commenting  on  Mersey  Steel  &  Iron  Co.  v. 
Naylor,  distinguishes  the  case,  pointing  out  that  the  ground  of 

230.  1  Atl.  320;  Reybold  v.  Voorbeos,  30  Pa.  IIG;  Robson  v.  Bohn, 
27  MInu.  333.  7  N.  W.  357;  rroviilence  Coal  Co.  v.  Coxe.  19  R.  I. 
380.  582,  35  Atl.  210;  Creswell  Ranch  &  C.  Co.  v.  Martindale,  63 
Fed.  84,  11  C.  C.  A.  33.  See,  also,  Dwinel  v.  no  ward.  30  Me.  2.18; 
Walton  V.  Black,  5  Houst.  (Del.)  149;  Bradley  v.  King,  44  111.  339; 
Stokes  V.  Baars,  18  Fla.  G5G;  IliRglus  v.  Delaware,  L.  &  W.  R.  Co., 
GO  N.  Y.  553. 

losBolhunn  v.  Burt,  Gl  Md.  415;  Blackburn  v.  Reilly.  47  X.  J. 
I^w,  290.  1  Atl.  27,  54  Am.  Rep.  159;  Trotter  v.  Ileckscher.  40  X. 
J.  Eq.  612.  4  Atl.  83;  Myer  v.  Wheeler.  65  Iowa.  3VK).  21  X.  W. 
692;  Hansen  v.  Consumers'  Stoam-Iloatlng  Co.,  73  Iowa.  77,  34  X. 
W.  495;  Gerll  v.  Manufacturing  Co.,  57  X.  J.  Law.  4.^2,  31  Atl.  401. 
30  L.  R.  A.  61,  51  Am.  St.  Rep.  611;  Mayor  v.  Schaub  Bros..  96 
Md.  .534.  54  Atl.  100.  And  see  West  v.  Bechtel.  125  Mich.  144.  84 
X.  W.  G9.  51  L.  R.  A.  791.  See.  also,  an  article  by  Mr.  I.androth.  21 
Am.  Law  Reg.  398,  In  which  he  concludes  that  the  weight  of  Amer- 
ican authority  supports  the  English  rule. 

xo»  115  u.  S.  188,  6  Sup.  Ct.  12,  29  L.  Ed.  366. 
TirF.SAi.Es(2D  Ed.)— 19 


290  PERFORMANCE   OF   CONTRACT.  (Ch.  8 

the  decision,  as  stated  by  the  Lord  Chancellor,  are  applicable 
only  to  the  case  of  failure  of  the  buyer  to  pay  for,  and  not  to 
failure  of  the  seller  to  deliver,  the  first  installment ;  that  is,  that, 
since  delivery  must  precede  payment,  no  particular  payment 
can  be  a  condition  precedent  to  the  entire  contract,  and  hence 
payment  cannot  be  a  condition  precedent  to  a  subsequent '  ful- 
fillment of  the  unfulfilled  part,  by  delivery  of  the  subsequent 
installments.^^"  In  a  later  case"^  in  the  Supreme  Court  the 
same  rule  was  applied  where  the  first  installment  had  been  de- 
livered and  paid  for,  and  the  default  consisted  in  failure  to  de- 
liver the  rest  of  the  quantity  within  the  time  specified.  It  has 
been  held,  however,  in  numerous  cases,  that  neglect  or  refusal 
to  pay  for  an  installment  is  such  a  default  as  gives  the  seller 
the  right  to  repudiate  the  contract.^^* 


DELIVERY  TO   CARRIER. 

90.  Where,  In  pursuance  of  a  contract  of  sale,  tlie  seller  is 
authorized  or  required  to  send  the  goods  to  the  buyer, 
delivery  of  the  goods  to  a  carrier,  itrhether  named  by 
the  buyer  or  not,  for  the  purpose  of  transmission  to 
the  buyer,  is  deemed  to  be  a  delivery  to  the  buyer,  ex- 
cept Tvhere  the  contract  requires  the  seller  to  deliver 

110  The  English  editor  of  Benjamin  on  Sales,  commenting  on  Nor- 
rington  v.  Wright,  says  that  "this  appears  to  be  an  entire  misap- 
prehension of  the  ratio  decidendi  of  that  case  [Mersey  Steel  &  Iron 
Co.  V.  Naylor,  9  App.  Cas.  434]  both  in  the  House  of  Lords  and  in 
the  Court  of  Appeal,  which  lies  in  the  application  of  a  general 
principle  equally  applicable  whether  the  breach  of  contract  is  com- 
mitted by  one  or  other  of  the  parties  to  the  contract."  Benj.  Sales 
(Bennett's  7th  Am.  Ed.)  §  593a. 

111  Cleveland  Rolling  Mill  v.  Rhodes,  121  U.  S.  255,  7  Sup.  Ct. 
882,  30  L.  Ed.  920, 

112  Robson  V.  Bohn,  27  Minn.  333,  7  N.  W.  357  (cf.  Beatty  v. 
Lumber  Co.,  77  Minn.  272,  79  N.  W.  1013);  Rugg  v.  Moore,  110  Pa. 
236,  1  Atl.  320;  McGrath  v.  Gegner,  77  Md.  331,  26  Atl.  502,  39  Am. 
St.  Rep.  415;  Hull  Coal  &  C.  Co.  v.  Coke  Co.,  113  Fed.  256,  51  C. 
C.  A.  213;  George  H.  Hess  Co.  v.  Dawson,  149  111.  138,  36  N.  B. 
557.  And  see  Faber  v.  Houghtham,  30  Or.  428,  .59  Pac.  547,  1111; 
National  Machine  &  T.  Co.  v.  Machine  Co.,  181  Mass.  27.5,  63  N.  E. 
900;  Eiistern  Forge  Co.  v.  Corbin,  182  Mass.  590,  66  N.  E.  419; 
National  Contracting  Co.  v.  Cement  Co.,  192  Mass.  247,  78  N.  E.  414. 

Mere  failure  to  pay,  not  evincing  a  purpose  to  renounce,  held  not 


§§  90-91)  DELIVEliV    TO    CAUUIEK.  201 

tlic   {;oods    to    the    buyer,    or    at    n    iiarticnlar    plnce,    or 
nnleas  a   contrary   iiiti'utiou    aiii»far«.i  i -^ 

91.  DUTY  TO  INSURE  SAFE  ARRIVAL.  UnlcM  othcrwiter 
authorized  by  tho  buyer,  the  aeller  lunst  make  snch 
contract  -with  tlie  carrier  on  behalf  of  the  buyer  a» 
may  bo  reasonable,  having  regard  to  the  nature  of 
the  goods  and  the  other  circnmstanccs  of  the  case.  If 
the  seller  omit  so  to  do,  and  the  Roods  arc  lost  or  dam- 
aged in  course  of  transit,  the  buyer  may  decline  tf> 
treat  the  delivery  to  the  carrier  as  a  delivery  to  him- 
self, or  may  hold  the   seller  resiionsible  in  damages.!  i* 

As  we  have  already  seen,^^'*  wlicn  the  seller  is  bound  to  send 
the  goods  to  the  buyer,  a  delivery  to  a  common  carrier  is  de- 
livery to  the  buyer  himself,  the  carrier  becoming  the  bailee  of 
the  person  to  whom  the  goods  are  sent.^^*'  If,  however,  the 
seller  is  bound  to  deliver  at  the  buyer's  residence  or  at  a  dis- 
tant place,  the  carrier  is  the  seller's  bailee  for  the  purpose  of 

to  justify  the  seller  in  treating  the  contract  as  abamlonod.  Munarcb 
Cycle  Mfg.  Co.  v.  Wheel  Co.,  105  Fed.  324,  44  C.  C.  A.  5'J3;  West 
V.  Beohtel,  12."^  Mich.  144,  84  N.  W.  G9,  51  L.  K.  A.  T'Jl. 

113  See  Sales  Act,  §  40  (1). 

n<  Sale  of  Goods  Act,  §  32  (2),  followed  in  Sales  Act,  J  40 
(1),  which  is  said  to  be  declaratory  of  the  commou  law.  Benj- 
Salos  (5th  Eng.  Ed.)  739. 

11 B  Ante,  pp.94,  155. 

110  Walt  V.  Baker,  2  Exch.  1;  Dunlop  v.  Lambert,  0  Clark  &  F. 
COO;  Wilcox  Silver  Plate  Co.  v.  Green,  72  N.  Y.  17;  Strong  v.  Dodds, 
47  Vt.  34S;  Stafford  v.  Walter,  07  111.  83;  Pennsylvania  Co.  v.  Hold- 
orman,  09  Ind.  18;  Sarbecker  v.  State,  05  Wis.  171,  20  N.  W.  541, 
50  Am.  Rep.  024;  Kelsea  v.  Manufaetiu-ing  Co.,  55  N.  J.  Law,  320, 
20  Atl.  9<>7,  22  L.  R.  A.  415;  Kessler  v.  Smith,  42  Minn.  494,  44  N. 
W.  71>4;  Mann  v.  Glauber,  90  Ga.  795,  22  S.  E.  405;  McKee  v.  Bain- 
ter,  .52  Neb.  004.  72  N.  W.  1044;  Dr.  A.  P.  Sawyer  Medicine  0>.  v. 
.Johnson,  17S  Mass.  374,  59  N.  B.  1022;  McCullough  Bros.  v.  Arm- 
strong. 118  Ga.  424.  45  S.   E.  379. 

Cars  of  coal  which  -were  loaded  by  the  seller  at  the  mines  and 
billed  to  the  buyer  In  the  seller's  shipping  orders  to  the  railroad 
company  in  compliance  with  the  contract,  but  which  the  company 
appropriated  to  Its  own  use  under  a  plea  of  necessity,  are  to  l>e 
considered,  as  between  the  parties,  as  having  been  delivered  to  the 
buyer  in  pursuance  of  the  contract  Luhrig  Coal  Co.  v.  Jones  & 
Adams  Co.,  141  Fed.  017,  72  C.  C.  A.  311.  But  though  the  carrier 
is  the  buyer's  agent  to  receive,  he  l3  not  his  agent  to  accept  Ante, 
p.  89. 


292  PERFORMANCE   OF   CONTRACT.  (Ch.  8 

carriage,  and  delivery  to  the  carrier  is  not  delivery  to  the  buy- 
er.^^^  And,  although  the  seller  may  be  authorized  to  deliver  to 
a  carrier,  he  may  reserve  the  right  of  possession  or  property, 
and,  if  he  does  so,  delivery  to  the  carrier  is  not  delivery  to  the 
buyer.^^*  If  the  buyer  designates  a  particular  carrier  or  a  par- 
ticular route,  delivery  to  a  different  carrier  or  to  a  carrier  for 
shipment  by  a  different  route  is  not  delivery  to  the  buyer,^^' 

Duty  to  Insure  Safe  Arrival. 

"Delivery  of  goods  to  a  carrier  or  wharfinger,  with  due  care 
and  diligence,  is  sufficient  to  charge  the  purchaser,  but  he  has 
a  right  to  require  that  in  making  the  delivery  due  care  and 
diligence  shall  be  exercised  by  the  seller."  ^^°  The  seller  must 
use  the  usual  precaution  to  insure  delivery.^^^  Thus  where 
the  seller  neglected  to  apprise  the  carrier  that  the  value  of  the 

iiTDunlop  V.  Lambert,  6  Clark  &  F.  600;  Thompson  v.  Rail- 
road Co.,  1  Bond  (U.  S.)  152,  Fed.  Cas.  No.  13,950;  Bloyd  v.  Pollock, 
27  W.  Va.  75;  Devine  v.  Edwards,  101  111.  138;  Braddock  Glass  Co. 
V.  Irwin,  153  Pa.  440,  25  Atl.  490;  Herring-Marvin  Co.  v.  Smith,  43 
Or.  315,  72  Pac.  704,  73  Pac.  340;   ante,  p.  156. 

118  Ante,  p.  162. 

119  Filley  v.  Pope,  115  U.  S.  213,  6  Sup.  Ct.  19,  29  L.  Ed.  372; 
Wheelhouse  v.  Parr,  141  Mass.  593,  6  N.  E.  787;  lasigi  v.  Rosen- 
stein,  65  Hun,  591,  20  N.  Y.  Supp.  491. 

A  contract  for  the  sale  of  sugar  described  it  as  "shipping  or  to 
be  shipped  *  *  *  per  steamer  E.,"  the  price  to  be  so  much  per 
pound  "ex  ship."  There  were  also  clauses,  "Sea  damaged,  if  any, 
to  be  taken  at  a  fair  allowance,"  and  "No  arrival,  no  sale."  Held 
that,  the  sugar  having  been  put  on  board  the  E.,  the  purchaser's 
duty  to  receive  it  was  not  aflfected  by  the  fact  that  during  the  voy- 
age, owing  to  an  accident  to  the  vessel,  part  of  the  sugar  was  trans- 
ferred to  auother  vessel  for  transportation.  Harrison  v.  Fortlage, 
161  U.  S.  57,  16  Sup.  Ct.  488,  40  L.  Ed.  616. 

i2oBuckman  v.  Levi,  3  Camp.  414,  per  Lord  EUenborough. 

In  an  action  on  an  accepted  draft  on  the  consignment  of  a  car 
load  of  fruit,  it  appeared  that  the  consignor  shipped  the  fruit  dur- 
ing the  cold  season  in  a  common  box  car,  and  the  fruit  was  frozen  in 
transit;  that  consignor  could  have  shipped  the  fruit  in  a  refrigerator 
car,  so  as  to  prevent  freezing;  and  that  consignee  did  not  know  the 
condition  of  the  fruit  when  he  accepted  the  draft.  Held,  that  the 
consignor  was  negligent  in  so  shipping  the  fruit,  and  could  not 
recover  its  value.  Wilson  v.  Fruit  Co.,  11  Ind.  App.  89,  38  N.  E. 
827. 

121  Clarke  v.  Hutchins,  14  East,  475;  Ward  r.  Taylor,  56  111. 
494.     Where  the  order  was  to  ship  by  rail   immediately,   and  the 


§§  90-91)  DKLIVKKY    TO   CAKKIKU.  29:5 

goods  exceeded  £5,  altliough  the  carriers  had  publislied,  and 
it  was  notorious  in  the  place  of  shipment,  that  they  would  not 
be  responsible  for  a  package  above  that  value  unless  entered 
and  paid  for  as  such,  and  the  package  was  lost,  it  was  held, 
in  an  action  for  goods  sold  and  delivered,  that  there  had  been 
no  delivery.^-'  If  the  goods  are  misdirected  by  the  seller,  so 
as  to  prevent  their  receipt  by  the  buyer,  the  delivery  is  bad.*-' 
But  the  buyer  must  take  any  risks  of  deterioration  necessarily 
incident  to  the  transit.*^* 

Duty   to    Insure. 

As  a  rule  the  seller  is  not  hound  to  insure.*^"  But  if  the 
dealings  of  the  parties  show  that  the  seller  is  bound  under  the 
contract  to  insure  when  requested,  and  he  fails  on  request  to 
insure,  and  the  goods  are  lost,  he  cannot  recover  payment.* '''' 
The  English  Sale  of  Goods  Act  provides:  "Unless  otherwise 
agreed,  where  goods  are  sent  by  the  seller  to  the  buyer  by  a 
route  involving  sea  transit,  under  circumstances  in  which  it  is 
usual  to  insure,  the  seller  must  give  such  notice  to  the  buyer 
as  may  enable  him  to  insure  them  during  their  sea  transit, 
and,  if  the  seller  fails  to  do  so,  the  goods  shall  be  deemed  to 
be  at  his  risk  during  such  sea  transit."  **^ 

railroad  company  refused  to  transport  witlioiit  a  release  of  liability, 
a  delivery  on  these  terms  was  good.     Stafford  v.  Walter,  G7  HI.  83. 

122  Clarke  v.  nutchins.  14  I'iist,  475. 

123  Finn  v,  Clark.  10  Allen  (Mass.)  470;  Id.,  12  Allen  (Mass.) 
522;    Garretson  v.  Selhy.  37  Iowa.  .VJi),  18  Am.  Rep.  14. 

12^  Bull  V.  Robinson.  10  Exch.  342,  24  Law  J.  Exdi.  10.".;  Legpat 
V.  Brewing  Co..  00  111.  158;  Mobile  Fruit  «.V:  Trading  Co.  v.  McGuire. 
81  Minn.  232,  83  N.  W.  833;  McIIenry  v.  Bulifaut.  207  Pa.  15,  56 
Atl.  22G;  Jones  v.  Bloomgarden,  143  Mich.  320,  100  N.  W.  891.  See 
Rale  of  Goods  Act,  §  33.     And  see  ante,  p.  261. 

125  Bartlett  v.  Jewett,  98  Ind.  200. 

126  New  York  Tartar  Co.  v.  French,  154  Pa.  273,  20  Atl.  42,5. 

127  Section  32  (3).  The  rule  is  boiTowed  from  the  Scotch  law. 
Chalm.  Sale  of  Goods  Act  (Otli  Ed.)  70;  Benj.  Sales  (5th  I-:ng.  Ed.) 
730.  It  Is  followed  with  modiflration  in  Sales  Act.  §  40  (3).  Prof. 
Wlllistou  says  It  is  probably  In  accord  with  business  usage. 


294  PERFORMANCE    OF   CONTRACT.  (Cll.  8 


BUYER'S    RIGHT    TO    EXAMINE    GOODS. 

92.  Where  goods  are  delivered  to  the  buyer,  \rliich.  he  has  not 

previously  examined,  he  is  not  deemed  to  have  ac- 
cepted them  unless  and  until  he  has  had  a  reasonable 
opportunity  of  examining  them  for  the  purpose  of  as- 
certaining xphether  they  are  in  conformity  with  the 
contract.12  8 

93.  Unless  otherwise  agreed,  when  the  seller  tenders  delivery 

'of  goods  to  the  buyer,  he  is  bound,  on  request,  to  af- 
ford the  buyer  a  reasonable  opportunity  of  examining 
the  goods  for  the  purpose  of  ascertaining  whether 
they  are  in  conformity  'with  the  contract.^^^ 

An  offer  of  delivery,  accompanied  with  refusal  to  permit  ex- 
amination, or  without  reasonable  opportunity  to  inspect,  is  in- 
valid.^ ^° 

The  buyer  is  not  deemed  to  have  accepted  until  he  has  had  a 
reasonable  opportunity  to  inspect.  He  may,  hov/ever,  waive 
inspection.^^-     And  if  he  fails  to  inspect  within  a  reasonable 

128  Sale  of  Goods  Act,  §  34  (1);   Sales  Act,   §  47   (!)•     See,   also, 
Sale  of  Goods  Act,  §  15  (2)  (b) ;  Sales  Act,  §  16  (b) ;  ante,  p.  263. 
128  Sales  Act,  §  47  (2). 

130  Isherwood  v.  Whitmore,  11  Mees.  &  W.  347,  10  Mees.  &  W. 
757;  Lorymer  v.  Smith,  1  Barn.  &  C.  1;  Croninger  v.  Crocker,  62 
N.  Y.  151;  Pope  v.  Allis,  115  U.  S.  363,  6  Sup.  Ct.  69,  29  L.  Ed. 
393;  Charles  v.  Carter,  96  Tenn.  607,  36  S.  W.  396;  Sun  Pub.  Co. 
V.  Foundry  Co.,  22  Or.  49,  29  Pac.  6.  Where  delivery  of  hides  was 
to  be  on  payment  of  draft,  an  offer  to  allow  examination  at  the 
railway  station  was  sufficient.  Sawyer  v.  Dean,  114  N.  Y.  469, 
21  N.  E.  1012.  A  purchaser  of  lumber,  sent  to  his  yard  in  box  cars 
in  which  it  cannot  be  examined,  may  unload,  inspect,  and  exam- 
ine before  acceptance.  Holmes  v.  Gregg,  66  N.  H.  621,  28  Atl.  17. 
Where  by  the  contract  the  seller  was  to  deliver  iron  of  specified 
quality  f.  o.  b.  at  Liverpool,  and  the  buyer  was  to  pay  by  bills  of* 
exchange  at  00  days  on  delivery  of  shipping  documents  at  New 
York,  his  right  of  inspection  continued  till  the  iron  arrived  in  New 
York,  and  payment  after  receipt  of  the  documents,  but  before  op- 
portunity to  inspect,  did  not  conclude  the  buyer  from  denying  on 
acceptance.  Pierson  v.  Crooks,  115  N.  Y.  539,  22  N.  E.  349,  12  Am. 
St.  Rep.  831.  Although  the  place  of  delivery  is  ordinarily  the  place 
of  inspection,  the  seller  may  consent  to  inspection  at  another  place. 
Cefalu  V.  Fitzsimmons-Derrig  Co.,  Go  Minn.  480,  67  N.  W.  1018. 

131  Castle  V.  Sworder,  30  Law  J.  Exch.  310,  312,  per  Cockburn. 
C.  J.    The  circumstances  of  the  sale  may  be  such  that  the  law  will 


§§  92-93)      bdyek'8  uiuuT  to  examine  goods.  2'J~t 

time  lie  cannot  afterwards  reject  the  gooils.*"  The  right  of  in- 
spection carries  with  it  tlie  right,  if  necessary  for  the  purpose 
of  testing,  to  use  a  reasonahle  quantity  of  the  goods. ^" 

As  we  have  seen,  where  tlie  seller  delivers  goods  according  to 
order  for  transportation  to  the  buyer,  as  a  rule,  if  the  goods 
conform  to  the  description,  the  property  passes  upon  ship- 
ment.''* Nevertheless  the  bu\cr  has  the  right  of  inspection  be- 
fore acceptance,  and  if  they  do  not  correspond  with  the  con- 
tract the  property  does  not  pass,  and  upon  inspection  the  buyer 
may  refuse  to  accept  tlicm.^''    Where  goods  are  shipped  C.  O. 

not  Imply  the  right  to  inspect  before  delivery  and  payment.  Pettltt 
V.  Mitchell,  4  Man.  &  G.  819. 

If  the  buyer  does  not  make  a  sufficient  Inspection,  he  cannot  de- 
fend an  action  for  the  price  on  the  ground  that  It  would  have  taken 
several  hours.    Jones  v.  Blooingarden,  143  Mich.  320,  106  N.  W.  891. 

iszToulmin  v.  Hedley,  2  Car.  &  K.  157;  Lincoln  v.  Gallagher,  79 
Me.  1S».  8  Atl.  883;  Doane  v.  Dunham.  79  111.  131;  Browulee  v. 
Bolton,  44  Mich.  218.  6  N.  W.  657;  Boothby  v.  Scales,  27  Wis.  626; 
McClure  v.  Jefferson,  85  Wis.  208,  54  N.  W.  777;  Knoblauch  v. 
Kronschnahel,  18  Minn.  300  (Gil.  272);  Maxwell  v.  Lee,  34  Minn. 
511,  27  N.  W.  196. 

Where  Iron  was  shipped  from  Liverpool  to  Now  York  in  three 
shipments,  and  each  lot  was  Inspected  within  10  days  of  its  arrival, 
and  the  buyer  notified  his  rejection  within  a  month  after  arrival 
of  the  first  sliipment,  the  delay  was  not  so  great  as  to  be  held  un- 
reasonable as  matter  of  law.  Pierson  v.  Crooks,  115  N.  Y.  539,  22 
N.  E.  349,  12  Am.  St.  Rep.  831. 

What  Is  a  reasonable  time  depends  on  the  circumstances,  Includ- 
ing the  fact  of  their  being  perishable  or  nonperisliable.  Jones  v. 
Bloomgardon.  143  Mich.  326,  106  N.  W.  891. 

133  Philadelphia  Whiting  Co.  v.  White-T^ad  Works,  58  Midi.  29, 
24  N.  W,  881.  Cf.  Nelson  v.  Overman,  .38  S.  W.  882,  19  Ky.  I^w 
Rep.  161;  Zipp  Mfg.  Co.  v.  Pastorino,  120  Wis.  176.  97  N.  W.  90i. 
But,  where  the  buyer  has  notified  the  seller  of  his  rejection,  he  can- 
not use  a  portion  of  the  goods  in  making  a  test,  for  the  purpose  of 
determining  the  question  of  their  fitness,  or  of  providing  evidence 
of  their  unfitness,  and  still  Insist  on  his  right  to  reject  them.  Cream 
City  Glass  Co.  v.  Friodlander,  84  Wis.  53,  54  N.  W.  28,  21  L.  R.  A. 
135,  36  Am.  St.  Rep.  895. 

18*  Smith  V.  Edwards.  156  Mas.s.  221,  30  N.  E.  1017;    ante,  p.  155. 

i3BAnte,  p.  159.  AVeil  v.  Stone,  33  Ind.  App.  112,  69  N.  E.  698, 
104  Am.  St.  Rep.  243. 

"It  Is  said  that,  on  the  delivery  of  the  Iron  on  shipboard  at  Liver- 
\K>ol,  the  title  vested  in  the  plaintiffs,  and  that  the  vesting  of  the 
title  in  the  vendees  Implies  an  acceptance,  and  Is  Inconsistent  with 


296  PERFORMANCE  OF  CONTRACT.  (Ch.  8 

D.,  according  to  the  weight  of  authority,  the  property  passes; 
the  condition  merely  having  the  effect  of  reserving  the  seller's 
lien  for  the  price.^^*  Whether  the  right  of  inspection  exists 
in  such  cases  is  a  question  on  which  the  authorities  are  not  in 
accord.^^^ 

the  alleged  right  of  inspection  and  rejection  on  its  arrival  in  New 
York.  There  can  be  no  doubt  that,  on  delivery  to  the  caiTier  of  iron 
corresponding  with  the  contract,  the  title  would  immediately  vest 
in  the  piu:chasers,  and  the  iron  would  thereafter  be  at  their  risk; 
nor  is  there  any  doubt  of  the  general  rule  that  delivery  of  goods 
corresponding  with  the  contract  is  a  condition  precedent  to  the 
vesting  of  the  title  in  the  vendee.  *  *  *  But,  assuming  that  the 
title  to  the  iron  for  some  purposes  vested  in  the  plaintiffs  on  de- 
livery to  the  steamers,  it  was,  as  between  the  vendors  and  vendees, 
a  conditional  title,  subject  to  the  right  of  inspection  and  rejection 
for  inferior  quality  on  arrival  at  New  York."  Pierson  v.  Crooks, 
supra. 

Although  under  the  circumstances  of  the  case  the  property  passes, 
the  buyer  may  reject  if  on  examination  the  goods  do  not  fulfill  the 
conditions.    Alden  v.  Hart,  161  Mass.  57G,  37  N.  E.  742. 

Where  the  goods  fulfill  the  conditions  and  the  property  has  passed, 
but  the  goods  are  destroyed,  so  that  an  examination  is  impossible, 
the  buyer  is  not  relieved  from  liability  to  pay  the  price.  Wadhams 
&  Ck).  v.  Balfour,  32  Or.  313,  51  Pac.  642. 

Where  the  terms  are  cash,  and  the  goods  are  to  be  delivered  f. 
0.  b.  at  the  place  of  manufacture,  the  inspection,  if  any,  must  be 
made  at  that  place.  Lawder  &  Sons  Co.  v.  Grocery  Co.,  97  Md.  1, 
54  Atl.  QM,  62  L.  R.  A.  795. 

186  Ante,  p.  157. 

187  That  the  right  exists,  see  Lyons  v.  Hill,  46  N.  H.  49,  88  Am. 
Dec.  180;  Thick  v.  Railway  Co.,  137  Mich.  708,  101  N.  W.  64,  109 
Am.  St.  Rep.  694.  That  it  does  not  exist,  see  Wiltse  v.  Barnes,  46i 
Iowa,  210.  A  question  for  the  jury:  Louisville  Lithographic  Co. 
v.  Schedler,  23  Ky.  Law  Rep.  465,  63  S.  W.  8.  The  question  is  dis- 
cussed 18  Harv.  Law  Rev.  386. 

Sales  Act,  §  47  (3),  provides  that  the  buyer  is  not  entitled  to  ex- 
amine the  goods  in  the  absence  of  agreement  permitting  it  Prof. 
Williston  says  that  this  subsection  states  the  actual  practice  of 
large  express  companies,  and  probably  states  the  existing  law,  cit- 
ing Wiltse  Y.  Barnes,  supra. 


§  94)  ACCKITANCE.  207 


ACCEPTANCE. 

04.      The  buyer  is  deemed  to  have  accepted  tlie  goods — 

(a)  WIicu   lie    intimates   to    the    seller   that   lie   has    accepted 

them,  or 

(b)  Wben  the  {;oods  have  been  delivered  to  hiiu,  and  he  does 

any  act  in  relation  to  them  which  is  inconsistent  with 
the  OTTcrship  of  the  seller,  or 

(c)  When,  after  the   lapse   of   a   reasonable    time,   he   retains 

the  p;oods  xirithout  intimating  to  the  seller  that  he  baa 
rejected  them.i38 

Duty  to  Accept. 

Acceptance  and  delivery  beins:  concurrent  conditions,  the 
duty  to  accept  does  not  arise  unless  the  delivery  or  offer  of  de- 
livery is  suflkient.  Therefore  the  buyer  is  not  bound  to  ac- 
cept unless  he  has  had  an  opportunity  to  inspect.^*"  or,  on 
a  sale  by  sample,  unless  he  has  had  an  opportunity  to  com- 
pare the  bulk  with  the  sample.^*"  or  unless  the  offer  of  de- 
livery is  made  at  a  proper  time.^^^  or  if  the  deliver}-  is  of  too 
great  or  too  small  a  quantity. ^^^  On  the  other  hand,  if  the 
delivery  or  oflfer  of  delivery  is  good,  the  buyer  is  bound  to 
accept.  If  the  contract  of  sale  is  such  that  the  seller  need  not 
send  the  goods,  the  buyer  is  bound  to  accept  if  the  seller  af- 
fords him  reasonable  facilities  to  remove  the  goods.^*' 

Meaning  of  "Acceptance." 

"Acceptance"  in  performance  of  the  contract  is  an  assent 
by  the  buyer  that  the  goods  are  to  be  taken  by  him  under  and 
in  performance  of  the  contract.^**  Acceptance  may,  however, 
be  implied  from  the  buyer's  conduct,  in  which  case  he  is  deemed 
to  have  assented.  Acceptance  in  performance  of  the  contract 
appears  to  be  generally  identical  with  the  acceptance  necessary 
to  satisfy  the  statute  of  frauds,  as  the  statute  is  construed  in 
the  United  States. ^*°     But  in  England,  where  any  dealing  with 

138  Sales  Act,  §  48. 
is»Ante,  par.   02. 

i««  Txirymer  v.  Smith,  1  Barn.  &  C.  1;    Toulniln  v.  riocllo.v,  2  Car. 
&  K.  157.     Ante,  p.  litH. 
t4i  Ante,  p.  277  et  seq. 

i*2AJito.  p.  2.S1  ot  seq.  i**  Ante.  p.  85. 

i««  Ante.  p.  273.  l<»  Aflte.  p.  91. 


298  PERFORMANCE  OF  CONTRACT.  (Ch.  8 

the  goods  which  recognizes  a  pre-existing  contract  of  sale  is 
now  held  to  constitute  an  acceptance  under  the  statute,^*®  an 
acceptance  in  performance  of  the  contract  is,  of  course,  quite 
different  from  a  statutory  acceptance. 

Same — Ux press  Acceptance. 

Of  express  acceptance — that  is,  acceptance  where  the  buyer 
intimates  to  the  seller  that  he  accepts  the  goods — little  need 
be  said.  Any  form  of  words  that  expresses  assent  is 
enough.^*''  As  we  have  seen,  acceptance  may  precede  delivery ; 
and  where  the  sale  is  of  a  specific  chattel  in  a  deliverable  state, 
in  which  the  property  passes  at  once,  the  acceptance  is  ex- 
pressed by  the  contract  itself.^*' 

Same — Implied   Acceptance — Acts    of   Ownership. 

Acceptance  is  implied  from  a  resale  or  from  any  act  on  the 
part  of  the  buyer  which  he  would  not  have  a  right  to  perform 
if  he  were  not  the  owner  of  the  goods. ^*^  The  rule  in  this 
respect  is  the  same  as  under  the  statute  of  frauds. ^^°  Thus 
where  the  bulk  was  inferior  to  the  sample,  but  the  buyer  of- 
fered the  goods  on  sale  at  a  limited  price  at  auction,  although 
the  limit  was  not  reached,  it  was  held  that  he  could  not  after- 
wards reject.^ °^  A  sale  of  a  part  constitutes  an  acceptance  of 
the  whole.^" 


146  Ante,  p.  89. 

147  Saunders  v.  Topp,  4  Exch.  390,  18  Law  J.  Exch.  374. 

148  Ante,  p.  85. 

149  Parker  v.  Palmer,  4  Barn.  &  Aid.  387;  Chapman  v.  Morton,  11 
Mees.  &  W.  534;  Hamor  v.  Groves,  15  C.  B.  667;  Perkins  v.  Bell 
(1893)  1  Q.  B.  193;  Warden  v.  Marshall,  99  Mass.  305;  Brown  v. 
Foster,  108  N.  Y.  387,  15  N.  B.  608;  Delamater  v.  Chappell,  48  Md. 
245;  Hill  v.  McDonald,  17  Wis.  97;  Van  Winkle  v.  Crowell,  146  U. 
S.  42,  13  Sup.  Ct.  18,  36  Lr.  Ed.  880;  Carleton  v.  Jenks,  80  Fed.  937, 
26  C.  C.  A.  265;  Woodward  v.  Emmons,  61  N.  J.  Law,  281,  39  Atl. 
703 ;  Rock  Island  Plow  Co.  v.  Meredith,  107  Iowa,  498,  78  N.  W.  233 ; 
Cliambers  v.  Lancaster,  160  N.  Y.  342,  54  N.  E.  707;  George  D.  Sis- 
son  Lumber  &  Shingle  Co.  v.  Haak,  139  Mich.  383,  102  N.  W.  946. 

150  Ante,  p.  86. 

151  Chapman  v.  Morton,  11  Mees.  &  W.  534. 

162  Parker  v.  Palmer,  4  Barn.  &  Aid.  387;  Lenz  Y.  Blake-McFall 
Co.,  44  Or.  569,  76  Pac.  356.  Where  two  articles  are  sold  under  an 
entire  contract,  an  acceptance  of  one  is  an  acceptance  of  both.  Buck- 
eye-Buggy Co.  V.  Montana  Stables  (Wash.)  85  Pac.  1077. 


§  94)  ACcicrrANCE.  299 

Same — Failure  to  Reject. 

Altliougli  receipt  is  totally  distinct  from  acceptance,  receipt 
will  become  acceptance  if  the  right  to  reject  is  not  exercised 
within  a  reasonable  time.'"^  What  is  a  reasonable  time  is  a 
question  of  fact  depending  on  the  circumstances  of  the  case."* 
A  usage  of  the  Liverpool  corn  market,  allowing  the  buyer  one 
day  to  object  on  the  ground  that  the  corn  is  not  equal  to  sample. 
has  been  held  reasonable  and  binding  on  the  buyer.""  The 
same  has  been  held  of  a  usage  not  to  examine  goods  sold  at 
wholesale  until  opened  for  sale  to  consumers  in  due  course  of 
trade.^°*  The  time  within  which  the  right  to  reject  shall  be 
exercised  may  be  fixed  by  agreement."^  If  the  buyer  rightful- 
ly rejects,  he  is  not  bound  to  return  the  goods,  but  need  do  no 
more  than  notify  the  seller  of  his  refusal  to  accept."* 

1B3  Sanders  v.  Jameson,  2  Car.  &  K.  557;  Hobbs  v.  AVliip  Co.,  158 
Mass.  11)4,  33  N.  E.  495;  Gaylord  Mfg.  Oo.  v.  Allen,  .^^3  N.  Y.  515; 
Mason  v.  Smith,  130  N.  Y.  474,  29  N.  E.  749;  Tread  well  v.  Reynolds, 
39  Coun.  31;  Boughton  v.  Standlsh,  48  Vt.  594;  Watkius  v.  Paine, 
57  Ga.  50;  Carondelet  Iron  Works  v.  Moore,  78  111.  05;  Gafif  v.  Ho- 
mcyer,  59  Mo.  345;  Mackey  v.  Swartz,  GO  Iowa,  710,  15  N.  W.  57G; 
Knoblauch  v.  Krouschnabel,  18  Minn.  300  (Gil.  272);  Berthold  v. 
Manufacturing  Co.,  89  Iowa,  500,  50  N.  W.  000;  Foss-Schneider  Brew- 
ing Co.  V.  Bullock,  8  C.  C.  A.  14,  59  Fed.  83;  Black  v.  Delbridge, 
Brooks  &  Fisher  Co..  90  Mich.  50.  51  N.  W.  209;  Gray  v.  Ice-Mach. 
Co.,  103  Ga.  105.  29  S.  E.  004;  Auerbach  v.  Wundorlich,  70  Minn.  42, 
78  N.  W.  871;  H.  McCormick  Lumber  Co.  v.  Winans,  120  Wis.  019. 
105  N.  W.  M5;  Jones  v.  Bloomgarden.  143  Mich.  320.  106  N.  W.  801. 
But  where  articles  not  corresponding:  with  the  sample  were  retaimMl 
with  the  understanding  that  the  seller  should  make  them  correspond, 
and  not  be  paid  till  lie  had  done  so.  no  acceptance  could  be  implied. 
Belt  V.  Stetson.  20  Minn.  411,  4  N.  W.  779. 

154  Where  the  buyer,  who  had  bought  by  sample  a  hogshead  of 
older,  wrote  to  the  seller  that  it  was  unsalable,  and  that,  "should 
this  continue."  he  would  be  obllge<l  to  roturn  It,  and  the  seller  did 
not  reply  for  27  days,  when  he  df'niando<l  payment.  20  gallons  having 
then  been  consumed,  it  was  held  tliat  the  seller  had  by  his  silence 
consented  to  a  further  trial,  and  that  there  was  no  acceptance.  Lucy 
V.  Monflet,  5  Hurl.  &  N.  229. 

186  Sanders  v.  Jauio>K)n.  2  Oar.  &  K.  5i57. 

16'Doane  v.  Dunliani,  79  111.  131.  See.  also.  Tasker  v.  Crane  Co. 
<C.  C.)  55  Fed.  449. 

107  Potter  V.  I>ee.  94  Mich.  140.  53  N.  W.  1047;  Gontilli  v.  Starnce, 
133  N.  Y.  140,  30  N.  E.  000. 

issr.rimoldby  v.  Wells,  L.  R.  10  C.  P.  .391;    McCormick  Harvest- 


300  PERFORMANCE  OF  CONTRACT.  (Ch.  8 

Eifect  of  Acceptance. 

Whether  acceptance  of  the  goods,  if  they  do  not  conform  in 
quality  to  the  terms  of  the  contract,  discharges  the  seller  from 
liability  in  damages  for  breach  of  the  seller's  promise  or 
warranty  in  that  respect,  is  a  question  on  which  there  is 
much  conflict  of  authority.  If  there  was  an  express  war- 
ranty of  quality,  the  courts  are  substantially  unanimous  that  a 
right  of  action  for  damages  survives  acceptance.^^*  Many 
courts,  however,  hold  that  a  different  rule  applies  if  the  war- 
ranty is  implied. ^^°  This  subject  will  be  taken  up  in  treat- 
ing of  the  remedies  of  the  buyer  for  breach  of  warranty.^ ^^ 

Whether  the  buyer,  by  accepting  a  delivery  of  the  goods 
after  the  time  fixed  therefor  by  the  terms  of  the  contract, 
waives  any  claim  for  damages  he  may  have  arising  from  the 
delay,  is  also  a  question  on  which  the  cases  are  not  in  agree- 
ment. On  principle,  it  seems  that,  in  the  absence  of  agreement, 
express  or  impHed,  that  the  goods  are  taken  in  full  discharge  of 
the  contract,  he  does  not,  and  that  the  seller,  having  failed  to 
perform  his  contract,  is  liable  to  the  buyer  for  any  damages 
he  may  have  suffered  in  consequence  of  the  late  delivery; 
and  many  cases  so  hold.^®^     Some  cases  hold,  however,  that 


ing  Mach.  Co.  v.  Chesrown,  33  Minn.  32,  21  N.  W.  846;  Exhaust 
Ventilator  Co.  v.  Railway  Co.,  69  Wis.  454,  34  N.  W.  509;  McCormIck 
Harvesting  Mach.  Co.  v.  Cochran,  64  Mich.  636,  31  N.  W.  561;  Hardt 
V.  Electric  Co.,  84  App.  Div.  249,  82  N.  Y.  Supp.  835;  Rheinstrom  v. 
Steiner,  69  Ohio  St.  452,  69  N.  E.  745,  100  Am.  St.  Rep.  699;  Sale 
of  G-oods  Act,  §  36;    Sales  Act,  §  50. 

109  Post,  p.  370.  160  Post,  p.  373. 

i«i  Post,  p.  368. 

162  Diffnan  v.  Spurr,  3  Wash.  309,  28  Pac.  529;  Bagby  v.  Walker, 
78  Md.  239,  27  Atl.  1033;  Redlands  Orange  Growers'  Ass'n  v.  Gor- 
man, 101  Mo.  203,  61  S.  W.  820,  54  L.  R.  A.  718 ;  Belcher  v.  Sellards. 
19  Ky.  Law  Rep.  1571,  43  S.  W.  676  (but  see  Lucile  Min.  Co.  v. 
Fairbanks,  Morse  &  Co.,  27  Ky.  Law  Rep.  1100,  87  S.  W.  1121).  See, 
also.  Strain  v.  Manufacturing  Co.,  80  Tex.  622,  16  S.  W.  625 ;  Indus- 
trial Works  V.  Mitchell,  114  Mich.  29,  72  N.  W.  25. 

"A  contractor,  by  taking  what  he  can  get  under  his  contract  when 
he  can  get  It,  no  more  necessarily  and  as  matter  of  law  waives  a 
claim  for  damages  for  failure  to  perform  on  time  than  he  necessarily 
waives  a  defect  of  quality  by  accepting  goods."  Garfield  &  Proctor 
Coal  Co.  V.  Railroad  Co.,  166  Mass.  119,  44  N.  E.  119,  per  Holmes,  J. 


§  94)  ACCEPTANCE.  301 

the  acceptance  is  a  waiver,  unless  qualified  by  a  reservation  by 
the  buyer  of  the  right  to  claim  damages  for  a  dclay.^"^ 

These  and  other  vexed  questions  would  be  set  at  rest  by  the 
proposed  Sales  Act  by  the  following  provision :  "In  the  ab- 
sence of  express  or  implied  agreement  of  the  parties,  acceptance 
of  the  goods  by  the  buyer  shall  not  discharge  the  seller  from 
liability  in  damages  or  other  legal  remedy  for  breach  of  any 
promise  or  warranty  in  the  contract  to  sell  or  sale."  ^''* 

Buyer's  Liability  for  Failure  to  Accept  Delivery. 

In  Greaves  v.  Ashlin/"'  Lord  EHenborou.^h  said:  "If  the 
buyer  does  not  carry  away  the  goods  bought  within  a  reason- 
able time,  the  seller  may  charge  him  warehouse  room,  or 
he  may  bring  an  action  for  not  removing  them,  should  he  be 
prejudiced  by  such  delay."  In  accordance  with  this  dictum  the 
English  Sale  of  Goods  Act  enacts :  "When  the  seller  is  ready 
and  willing  to  deliver  the  goods,  and  requests  the  buyer  to  take 
delivery,  and  the  buyer  does  not  within  a  reasonable  time  after 
such  request  take  delivery  of  the  goods,  he  is  liable  to  the 
seller  for  any  loss  occasioned  by  his  neglect  or  refusal  to  take 
delivery,  and  also  for  a  reasonable  charge  for  the  care  and 
custody  of  the  goods."  ^'°  This  provision  is  followed  by  the 
proposed  American  Sales  Act.^'^ 

183  Minneapolis  Threshing  Mach.  Co.  v,  Hutohlngs,  65  Minn.  89, 
(m  N.  W.  807. 

184  Section  49.  The  section  also  provides:  "But  if,  nfter  accept- 
:nice  of  the  goods,  the  buyer  fail  to  give  notice  to  the  seller  of  the 
broach  of  any  promise  or  warranty  within  a  reasonable  time  after 
the  buyer  knows,  or  ousht  to  know  of  such  breach,  the  seller  shall 
not  be  liable  therefor."  This,  says  Prof.  Williston.  "imiwses  a  quali- 
fication sanctioned  by  good  business  practice  and  to  some  extent  by 
law,  bolh  In  this  country  and  in  Europe."    Post,  p.  371. 

105  3  Camp.  42n.  See,  also,  Bloxam  v.  Sanders,  4  "Barn.  &  C.  941, 
per  Bailey,  J.  Cf.  Putnam  v.  Glidden,  159  Mass.  47,  34  N.  E.  81.  38 
Am.  St.  Rep.  394;  Tripp  v.  Machine  Co.,  G9  N.  H.  233,  45  AU.  746; 
post,  p.  348. 

108  Section  37. 

187  Section  rA.  The  section  also  provider:  "If  the  neglect  or  re- 
fu.sal  of  the  buyer  to  take  delivery  amounts  to  a  repudiation  or 
breach  of  the  entire  contract,  the  seller  shall  have  the  rlght>i  against 
the  goods  and  on  the  contract  hereinafter  jji'ovidetl  in  favor  of  the 
seller  when  the  buyer  is  in  default"  See  sections  G0-G5.  Cf.  section 
45. 


302  PERFORMANCE    OF   CONTRACT.  (Ch.  8 


PAYMENT. 

95.  IN  CASH.    TTnless  the  contract  of  sale  otherwise  provides, 

the  buyer  must  pay  in  cash. 

96.  BY  NEGOTIABIiE  SECURITY.      ^Vhere  a  negotiable  se- 

cnrity  to  ■which  the  buyer  is  a  party  is  received  in 
payment  of  the  price,  the  presumption  in  most  juris- 
dictions is  that  such  payment  is  conditional,  though  in 
some  jurisdictions  the  presumption  is  that  it  is  ab- 
solute. 

Since  delivery  and  payment  are,  unless  the  contract  pro- 
vides otherwise,  concurrent  conditions,  the  duty  of  the  buyer 
to  pay  does  not  ordinarily  arise  unless  the  seller  is  ready  and 
willing-  to  deliver.^®*  But  at  common  law  a  debtor  has  no  right 
to  wait  until  demand  made,  but  must  pay  as  soon  as  the  money 
is  due,  at  the  peril  of  being  sued;  and  since  the  seller  is  not 
bound,  in  the  absence  of  express  agreement,  to  carry  the  goods 
to  the  buyer,^^^  it  follows  that  in  such  cases,  as  soon  as  the  sale 
is  completed,  if  no  time  is  given  and  the  goods  are  ready  for 
delivery,  the  buyer's  duty  to  fetch  and  pay  for  them  arises,  and 
an  action  is  at  once  maintainable  against  him  for  the  price.^'^" 
If  the  property  has  passed,  he  must  pay  for  them,  even  if  they 
have  been  destroyed  while  in  the  seller's  possession.^'^^  If 
credit  is  given,  he  has  a  right  to  their  possession  without  pay- 
ment.^''^ 

Tender  of  Payment. 

The  buyer  discharges  his  duty  by  a  tender  as  well  as  by 
actual  payment.  To  be  a  defense,  the  tender  must  be  kept 
good,  and  the  money  in  most  jurisdictions  must  be  actually 
paid  into  court.  When  this  is  done,  and  the  plea  is  sustained, 
although  the  tender  does  not  discharge  the  debt,  it  is  a  bar  to 
the  action ;  that  is,  the  seller  is  entitled  to  the  money  paid  into 
court,  while  the  buyer  recovers  judgment  with  costs. ^^'    Upon 

i«s  See  ante,  p.  268.  i^o  Ante,  p.  273 ;  Benj.  Sales,  §  707. 

169  Ante,  p.  273.  i7i  Ante,  p.  141  et  seq. 

i72rx>onavd  v.  Davis,  1  Black  (U.  S.)  476,  17  L.  Ed.  222;  ante, 
pp.  122,  260;  post,  p.  314. 

]T3  jaiHos  V.  Vane,  2  El.  &  El.  883,  20  Law  .7.  Q.  B.  169;  Penny- 
packer  V.  Umberger,  22  Pa.  492;  Wheeler  v.  Woodward,  66  Pa.  158 ; 
Taylor  v.  Railroad  Co.,  119  N.  Y.  561,  23  N.  E.  1106. 


§§  95-96)  PAYMENT.  303 

the  subject  of  tender  there  is  nothing  pecuHar  to  the  law  of 
sales,  and  the  reader  is  referred  elsewhere  for  the  rules  as  to 
what  constitutes  a  valid  tender.^^* 
Payment  by  Negotiable  Security — Conditional  Payment. 

\\'here  the  contract  is  silent  as  to  the  manner  of  payment, 
it  is  always  implied  that  the  payment  shall  be  in  cash.^^"  The 
contract  may,  however,  provide  for  payment  by  a  ncg^otiable 
security,  as  a  promissory  note  or  a  bill  of  exchange,  and  such 
payment  may  be  absolute  or  conditional,  according  to  the  agree- 
ment of  the  parties.  But  in  the  absence  of  any  agreement  to 
the  contrary,  express  or  implied,  a  payment  by  negotiable  se- 
curity is  in  most  jurisdictions  presumed  to  be  conditional,  so 
that  if  the  security  is  not  duly  honored  the  seller's  right  to  the 
price  revives.  This  is  the  general  rule  where  payment  of  an 
indebtedness  is  made  by  a  bill  or  a  note,^^°  and  it  ordinarily  ap- 
plies although  the  debtor  is  not  a  party  to  the  security,  as  draw- 
er, acceptor,  maker,  or  indorser.^^^  But,  where  at  the  time  of 
the  sale  the  paper  of  a  third  person  is  taken  in  payment  without 
indorsement  or  guaranty  of  the  buyer,  the  presumption  is  that 
the  note  is  taken  in  absolute  payment ;  "'  though,  if  such  paper 
is  taken  with  the  indorsement  or  guaranty  of  the  buyer,  the 
presumption  is  that  it  is  only  conditional  payment.^^°    Payment 

174  Clark,  Cont.  (2d  Ed.)  440;  Beuj.  Sales  (7tli  Am.  Ed.)  §  712  et 
seq.,  and  Benuett's  note,  p.  781. 

17  6  Ante,  p.  123. 

1T6  2  Daniel,  Neg.  Inst.  (4th  Ed.)  §  12G0;  Norton,  Bills  &  N.  19; 
Ames,  Cus.  Bills  &  N.  p.  571,  note  2,  p.  874,  par.  G;  Benj.  Sales,  § 
729  et  sei].,  and  Bennett'.s  note,  p.  773.  An  intention  to  take  a  bill  or 
a  note  in  absolute  payment  must  be  clearly  shown,  and  not  deduced 
from  ambiguous  expressions,  such  as  that  the  bill  was  taken  "in 
payment"  for  the  goods  or  in  discharge  of  the  price.  Steilman  v. 
Gooch,  1  Esp.  5;  Maillard  v.  Duke  of  Argyle,  G  Man.  &  G.  40;  Kemp 
V.  Watt.  I'i  Mees.  &  W.  672. 

177  Ames,  Cas.  Bills  &  N.  571,  note  2. 

i78Whitbeck  v.  Van  Ness,  11  Johns.  (N.  Y.)  409.  G  Am.  Dec.  3S:'. ; 
Breed  v.  Cook.  l5  Johns.  (N.  Y.)  241;  Noel  v.  Murray.  13  N.  Y.  ir.7: 
Bicknall  v.  WaterniiUi,  o  R.  I.  43;  Eaton  v.  Cook,  32  Vt  58;  Bayard 
V,  Shunk,  1  Watts  vt  S.  (Pa.)  92,  37  Am.  Dec.  441;  2  Daniel,  Neg. 
Inst.  (4th  Ed.)  §  1204. 

170  Monroe  v.  Hoff,  5  Denio  (N.  Y.)  300;  Butler  v.  Halght.  8  Wend. 
(N.  Y.)  535;    Whitney  t.  Coin,  20  N.  H.  354.    This  presumption  may 


304  PERFORMANCE  OF  CONTRACT.  (Ch.  8 

by  check  or  draft  is  presumed  to  be  conditional.*"  These 
various  presumptions  may  all  be  rebutted  by  evidence  showing 
a  different  intention  on  the  part  of  the  parties.  In  Massa- 
chusetts, Maine,  Vermont,  Indiana,  and  Louisiana,  on  the 
other  hand,  the  ordinary  rule  is  reversed;  and,  where  a  prom- 
issory note  or  bill  of  exchange  is  given  in  payment  of  an  in- 
debtedness, the  payment  is  presumed  to  be  absolute,  though 
this  presumption  may  be  rebutted. ^^^  The  effect  of  the  giving 
of  a  promissory  note  or  bill  of  exchange  in  payment  belongs 
to  the  law  of  negotiable  instruments,  and  the  reader  is  referred 
to  the  books  upon  that  subject. 

Payment  to  Agent. 

Whether  an  agent  is  authorized  to  receive  payment  depends 
upon  the  law  of  agency,  and  need  not  here  be  considered.  It  is 
to  be  noted,  however,  that  a  factor,  and  generally  an  agent  who 
is  intrusted  with  the  possession  of  goods  with  authority  to  sell 
them,  is  entitled  to  receive  payment;  ^^^  but  that  a  broker,  and 
generally  an  agent  who  is  not  intrusted  with  the  possession  of 
the  goods,  is  not  entitled  to  receive  payment.^ ^^  "If  a  shop- 
man, who  is  authorized  to  receive  payment  over  the  counter 
only,  receives  payment  elsewhere  than  at  the  shop,  the  payment 
is  not  good."  ^**  Payment  to  an  agent  employed  to  sell  mu.st 
be  in  money,  in  the  usual  course  of  business.^  ^^ 

be  rebutted.  Soffe  v.  Gallagher,  3  E.  D.  Smith  (N.  Y.)  507;  2  Daniel, 
Neg.  Inst.  (4th  Ed.)  §  1265. 

180  2  Daniel,  Neg.  Inst.  (4th  Ed.)  §  1623. 

181  Daniel,  Neg.  Inst.  (4th  Ed.)  §  1260;  Ames,  Gas.  Bills  &  N.  p. 
571,  note  2. 

182  Hornby  v.  Lacy,  6  Maule  &  S.  166;  Fish  v.  Kempton,  7  C. 
B.  687;  Whifon  v.  Spring,  74  N.  Y.  169,  173;  Seiple  v.  Irwin,  30  Pa. 
513,  515 ;  Butler  v.  Dorman.  OS  Mo.  298,  300,  30  Am.  Rep.  795 ;  Bailey 
V.  Pardridge,  134  111.  188,  27  N.  B.  89;    Tiffany,  Ag.  pp.  208,  223. 

183  Baring  v.  Gorrie,  2  Barn.  &  Aid.  137;  Higgins  v.  Moore,  34  N. 
Y.  417;  Seiple  v.  Irwin,  30  Pa.  513;  Law  v.  Stokes,  32  N.  J.  Law, 
240.  90  Am.  Dec.  655 ;  Butler  v.  Dorman,  68  Mo.  298,  30  Am.  Rep. 
705;  Clark  v.  Smith,  88  111.  298;  McKindly  v.  Dunham,  55  Wis.  515, 
13  N.  W.  485,  42  Am.  Rep.  740;    Tiffany,  Ag.  p.  224. 

i84Kaye  v.  Brett,  5  Exch.  269,  per  Parke,  B. 

186  Catterall  v.  Hindle,  L.  R.  1  G.  P.  186,  35  Law  J.  C.  P.  161,  per 
Keating,  J.;  McGulloch  v.  McKee,  16  Pa.  289;  Trudo  v.  Anderson, 
30  Mich.  3.57,  81  Am.  Dec.  795;  Wheeler  &  Wilson  Mfg.  Oo.  v.  Givan, 
05  Mo.  89 ;   Aultman  v.  Lee,  43  Iowa,  404. 


97-99)  EXCUSKS   FOR   NONPERFORMANCE.  805 


EXCUSES    FOR    NONPERFORMANCE    OF    CONDITIONS. 

97.  WAIVER.     The  performance  of  a  condition  precedent  may 

bo    ivaivod. 

98.  RENUNCIATION  OF  CONTRACT.      A  party  to  a  contract 

of  sale,  on  \irIioni  the  performance  of  a  condition  pre- 
cedent i^sts,  is  excused  from  performance,  if  before  or 
at  the  time  of  performance  the  other  party  absolutely 
refuses  to  perform  or  incapacitates  himself  from  per- 
formance. 

99.  IMPOSSIBFLITY  OF  PERFORMANCE.      Impossibility  of 

performance,  arisinf;  after  the  formation  of  the  con- 
tract, does  not  excuse  the  promisor,  except — 

(a)  WTiere  there  is  a  contract  to  sell  specific  goods,  and  snb- 

seqnently,  but  before  the  risk  passes  to  the  buyer, 
\rithont  any  fault  on  the  part  of  the  seller  or  the  buy- 
er, the  goods  wholly  perish,  the  contract  is  thereby 
avoided.' S8 

(b)  Where  the  impossibility  is  created  by  law. 

IVaiz^cr. 

The  performance  of  a  condition  may  be  waived  by  the  party 
in  whose  favor  it  exists,  either  expressly  or  by  his  acts  or 
conduct. ^^^  For  example,  the  condition  of  payment  on  delivery, 
implied  in  every  sale  not  on  credit,  may  be  waived  by  delivery 
of  the  goods  without  requiring  payment;  ^^®  and  a  party  may 
waive  performance  of  a  condition  by  refusing  to  accept  or  pre- 
venting performance.^^"  Another  example  of  waiver  is  where 
the  buyer  elects  not  to  treat  the  nonperformance  by  the  seller 
of  a  promise  or  warranty  as  a  ground  for  rejecting  the  goods, 

188  Sales  Act,  8  8  (1).  "7  Beuj.  Sales,  §  5GG. 

1S8  Ante,   p.  132. 

isoiiotbaiii  V.  East  India  Co.,  1  Term  R.  G45;  Cort  v.  Railw.ay 
Ck)..  17  g.  B.  127;  Mackay  v.  Dick,  G  App.  Cas.  251;  Hosmer  v.  Wil- 
son, 7  Micb.  204.  74  Am.  Dec.  710;  Butler  v.  Butler,  77  N.  Y.  472,  47.'>, 
33  Am.  Rep.  GIS;  Allen  v.  Jarvis,  20  Oonn.  38;  Borden  v.  Borden.  5 
Mass.  G7.  4  Am.  Dec.  32;  U.  S.  v.  Peck.  102  U.  S.  G5,  2G  L.  Ed.  40; 
Eastern  Granite  Co.  v.  Helm,  89  Iowa,  G9S,  57  N.  W.  437 ;  Day  v.  Jef- 
fords, 102  Ga.  714,  20  S.  E.  ."".01  ;  De  La  Vergne  Refrigerating  Macb. 
Co.  V.  Railroad  Co.,  51  La.  Ann.  17:53,  2G  South.  455;  VandcLcrlft  v. 
Enpineering  Co.,  IGl  N.  Y.  43.5,  55  N.  E.  941,  48  L.  R.  A.  GS5 ;  North 
v.  Mallory,  94  Md.  305,  51  Atl.  89.  See  Clark,  Cont.  (2d  Kd.)  447. 
Tift.Sales(2u  Ed.) — 20 


306  PERFORMANCE  OF  CONTRACT.  (Oh.  8 

but  to  go  on  with  the  contract  and  seek  his  remedy  in  an  action 
or  counterclaim  for  damages.^^"      ^ 

Renunciation  of  Contract. 

The  performance  of  a  condition  precedent  is  not  necessary 
if  the  other  party,  before  the  time  for  performance  arrives, 
absokitely  refuses  to  perform,  or  incapacitates  himself  from 
performing,  his  promise.     "Lex  neminem  ad  vana  cogit." 

The  renunciation  must  amount  to  an  absolute  refusal  to  per- 
form.^ ®^  Such  a  renunciation  is  generally  held  to  be  equivalent 
to  a  breach  of  the  contract,  and  to  entitle  the  other  party  to  sue 
for  the  breach  without  waiting  for  the  time  fixed  by  the  con- 
tract for  performance.^®^  But  the  other  party  may  refuse  to 
accept  the  renunciation,  and  may  insist  upon  the  performance  of 
the  contract;  ^^^   although  he  may  not  continue  to  perform  and 

noBehn  v.  Burness,  32  Daw  J.  Q.  B.  204;  Heilbutt  v.  Hickson, 
L».  R,  7  C.  P.  438,  450;    ante,  p.  231;  post,  p.  372. 

181  Johnstone  v.  Milling.  16  Q.  B.  Div.  460;  Dingley  v.  Oler,  117  U. 
S.  490,  6  Sup.  Ct.  850,  29  L.  Ed.  984;  Smoot's  Case,  15  Wall.  (U.  S.) 
36,  21  L.  Ed.  107.  As  to  renunciation,  see  Clark,  Cont.  (2d  Ed.)  444 ; 
and  as  to  impossibility  created  by  act  of  party,  see  Clark,  Cont  (2d 
Ed.)  448. 

i»2Hochster  v.  De  la  Tour,  2  El.  &  Bl.  678;  Frost  v.  Knight,  L. 
E,  7  Exch.  Ill;  Roper  v.  Johnson,  L.  R.  8  0.  P.  167;  WindmuUer 
V.  Pope,  107  N.  Y.  674,  14  N.  E.  436;  Eckenrode  v.  Chemical  Co.,  55 
Md.  51 ;  James  v.  Adams,  16  W.  Va.  245 ;  Piatt  v.  Brand,  26  Mich. 
173 ;  McCormick  v.  Basal,  46  Iowa,  2.35 ;  Kalkhoff  v.  Nelson,  60  Minn. 
284,  62  N.  W.  332 ;  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Richards,  152  111.  59, 
38  N.  B.  773,  30  L.  R.  A.  33;  Stokes  v.  Mackay,  147  N.  Y.  223,  41  N. 
D.  496;  Pancake  v.  George  Campbell  Co.,  44  W.  Va.  82,  28  S.  E.  719; 
Roehm  v.  Horst,  178  U.  S.  1,  20  Sup.  Ct.  780,  44  L.  Ed.  953.  And  see 
Stanford  v.  McGill,  6  N.  D.  536,  72  N.  W.  938,  38  L.  R.  A.  760;  King 
V.  Waterman,  55  Neb.  324,  75  N.  W.  830.  Contra,  Daniels  v.  Newton, 
114  Mass.  530,  19  Am.  Rep.  384.  For  a  discussion  of  this  question, 
see  14  Harv.  Law  Rev.  421.  As  to  the  measure  of  damages,  post, 
p.  3.50. 

183  Avery  v.  Bowden,  5  El.  «&  Bl.  714;  Johnstone  v.  Milling,  16  Q. 
B.  Div.  460;  Smoot's  Case,  15  Wall.  (U.  S.)  36,  21  L.  Ed.  107;  Zuck 
V.  McCluro,  98  Pa.  541;  Kadish  v.  Young,  108  111.  170,  43  Am.  Rep. 
548 ;   Howard  v.  Daly,  01  N.  Y.  362,  19  Am.  Rep.  285. 

If  the  promisee  does  not  treat  the  renunciation  as  a  ground  for 
putting  an  end  to  the  contract,  but  continues  to  insist  on  perform- 
ance, the  contract  remains  in  existence  for  the  benefit  of  and  at  the 
risk  of  both  parties.  Avory  v.  Bowden,  supra;  Smith  v.  Banking  Co., 
113  Ga.  975,  39  S.  B.  410,  and  cases  cited  supra. 


§§  97-99)  EXCUSES   FOR   NOM'EUFORMANCK.  3U7 

recover  full  damages  based  on  full  performance,  that  is,  he 
may  not  increase  his  damages  by  a  useless  performance.'** 
The  effect  of  the  renunciation,  however,  if  not  withdrawn,  is 
to  excuse  him  from  tendering  performance  of  the  conditions 
incumbent  upon  him.'"*  The  rule  applies  equally  to  a  re- 
nunciation after  partial  performance.  Thus,  if  after  a  par- 
tial delivery  the  buyer  gives  notice  to  the  seller  that  he  will 
accept  no  further  deliveries,  the  seller  may  sue  for  breach  of 
contract  without  averring  performance,  and  upon  the  simple 
averment  that  he  was  ready  and  willing  to  perform,  and  had 
been  prevented  from  so  doing  by  the  buyer.'"' 

.\  fortiori  the  contract  is  discharged  when  one  of  the  parties 
makes  it  impossible  to  perform  his  promise.  Thus  where  the 
seller  agrees  to  sell  a  specified  ox,  and  before  the  time  for  de- 
livery consumes  it,'°^  or  contracts  to  sell  specific  goods,  and  be- 
fore the  day  for  delivery  sells  them  to  another,'"*  the  buyer 
may  sue  for  the  breach  without  tendering  the  price. 

Insolvency  of  Buyer. 

The  mere  insolvency  of  the  buyer  does  not  excuse  the  seller 
from  performance,  since  the  assignee  or  trustee  of  the  insolvent 
may  elect  to  complete  the  contract;  "*"   but,  in  case  of  the  in- 

i»«  ro.st,  p.  351. 

186  Bunge  V.  Koop,  48  N.  Y.  225,  8  Am.  Rep.  546;  Crist  v.  Armour, 
34  Barb.  (N.  Y.)  378;  McPherson  v.  Walker.  40  111.  372;  Daniels  v. 
Newtou,  114  Mass.  530,  r.3;i,  19  Am.  Rep.  3S4;  Ault  v.  Dustln.  100 
Tenn.  3G0,  45  S.  \V.  981.    See,  also,  cases  cited  in  note  198,  post 

leaCort  v.  Railway  Ck).,  17  Q.  B.  127;  Hosmer  v.  Wilson,  7  Mich. 
294,  74  Am.  Dec.  71G;  Clement  «&  Hawkes  Mfg.  Co.  v.  Meserole,  107 
Mas.s.  302;  Parker  v.  Russell,  133  Mass.  74;  Haines  v.  Tucker,  5<> 
N.  11.  307.  311:  Canda  v.  Wick.  100  N.  Y.  127,  2  N.  E.  381;  Textor 
V.  IIutcliiiiRs.  02  Md.  150;  Walsh  v.  Myers,  92  Wis.  397,  66  N.  W. 
250;    Farwell  v.  Solomon,  170  Mass.  457,  49  N.  B.  738. 

J 07  Benj.   Sales.   §   .')07. 

losBowdell  V.  Parsons,  10  East,  359;  Hawley  v.  Keelor,  5.",  N.  Y. 
114;  Parker  v.  Pettit,  43  N.  J.  Daw,  512;  Smith  v.  Jordan,  13  Minn. 
264  (Gil.  240).  97  Am.  Dec.  234;  Newcomb  v.  Brackott,  10  Mass.  101  ; 
Ft.  Payne  C<:»al  &  Iron  Co.  v.  Webster,  ia3  Mass.  134.  39  N.  E.  780. 
Contra:  Wobb  v.  Stephenson,  11  Wash.  342,  39  Pac.  952;  Garberina 
V.  Roberts.  109  Cal.   125.  41   Pac.  ai7. 

While  the  seller  may  reacquire  the  goods  before  the  time  for  per- 
formance, the  chance  is  remote.     See  14  Ilarv.  Law  Rev.  427. 

i»»  In  re  Bessemer  Steel  Co..  4  Ch.  Div.  108;   Pardee  v.  Knnadny, 


308  PERFORMANCE  OF  CONTRACT.  (Ch.  8 

solvency  of  the  buyer,  the  seller  may  require  payment  of  cash 
on  delivery,  although  he  may  have  agreed  to  give  credit,^ °° 
and,  if  the  assignee  or  trustee  does  not  elect  to  complete  the  con- 
tract, the  seller  may  treat  the  insolvency  as  a  renunciation  of 
the  contract.^"^ 

Impossibility  of  Performance. 

As  we  have  seen,  impossibility  of  performance,  which  arises 
from  the  nonexistence  of  the  thing  sold  at  the  time  of  the  for- 
mation of  the  contract,  avoids  the  contract.^"^  The  question 
now  under  consideration  is  how  far  impossibility  arising  sub- 
sequently to  the  formation  of  the  contract  discharges  it,  and 
therefore  constitutes  an  excuse  for  nonperformance. 

The  general  rule  is  that  no  impossibility  arising  subsequent- 
ly to  the  formation  of  the  contract  is  an  excuse  for  nonper- 
formance.^"^ The  promisor  who  promises  unconditionally 
takes  the  risk  of  being  unable  to  perform,  even  though  his  in- 
ability should  be  caused  by  inevitable  accident  or  other  cir- 
cumstances beyond  his  control.^ °*  Thus,  where  the  seller  has 
contracted  to  deliver  goods,  he  is  liable  for  failure  to  deliver, 
notwithstanding  that  delivery  was  rendered  impossible  by  frosts 
or  freshets  or  other  causes  obstructing  navigation  or  transporta- 

100  N,  Y.  121,  2  N.  B,  885;  RaiDpleye  v.  Seeder  Co.,  79  Iowa,  220,  228, 
44  N.  W.  3G3,  7  L.  R.  A.  139;  Florence  Min.  Co.  v.  Brown,  124  U.  S. 
385,  8  Sup.  Ct.  531,  31  K  Ed.  424.  See,  also,  Vandegrift  v.  Engineering 
Co.,  161  N.  Y.  435,  55  N.   E.  941,  48  L.   R.  A.  685. 

200  Ex  parte  Chalmers,  8  Ch.  289;  Pardee  v.  Kanaday,  supra; 
Rappleye  v.  Seeder  Co.,  supra;  Florence  Min.  Co.  v.  Brown,  supra; 
Diem  v.  Koblitz,  49  Ohio  St.  41,  29  N.  E.  1124,  34  Am.  St,  Rep.  531; 
Lennox  v.  Murphy,  171  Mass.  370,  50  N.  E.  644. 

201  Ex  parte  Chalmers,  supra;    Morgan  v.  Bain,  10  C.  P.  15. 
Where  the  buyer  makes  an  assignment  for  benefit  of  creditors,  the 

seller  may  refuse  to  complete  the  contract.  Rappleye  v.  Seeder  Co., 
supra. 

202  Ante,  p.  45. 

203  Clark,  Cont.  (2d  Ed.)  472. 

204Ashmore  v.  Cox  &  Co.  (1899)  1  Q.  B.  436  (shipment  between 
dates  fixed  prevented  by  outbreak  of  war);  Summers  v.  Hibbard, 
Spencer  Bartlett  &  Co.,  153  111.  102,  38  N.  B.  899,  46  Am.  St.  Rep. 
872;  Middlesex  Water  Co.  v.  Knappmann  Whiting  Co.,  64  N.  J.  Law, 
240,  45  Atl.  693,  49  L.  R.  A.  572,  81  Am.  St.  Rep.  467;  Adams  T. 
Ames,  19  Wash.  425,  53  Pac.  546. 


\ 


§§  97-99)    EXCUSES  roR  nonperformance.        309 

tion,^""  or  by  pestilence,^"'  or  by  tbe  destruction  of  the  seller's 
factory  by  fire,'°^  or  by  droughts  stopping  his  mill.-*" 

Same — Destruction  of  Thins;  Sold. 

An  exception  to  the  general  rule  arises  when  the  impossibility 
is  caused  by  the  destruction  of  the  subject-matter  of  the  con- 
tract before  breach,  and  without  default  of  the  contractor.  The 
contract  is  said  to  be  subject  to  an  implied  condition  to  this 
effect.  Where  the  continued  existence  of  a  specific  thing  is  es- 
sential to  the  performance  of  a  contract,  the  destruction  from  no 
fault  of  cither  party  operates  as  a  discharge.^""  Therefore, 
where  the  contract  is  for  the  sale  of  specific  goods  which  perish 
without  the  fault  of  the  seller  or  the  buyer  before  the  day  ap- 
pointed for  delivery,  the  seller  is  excused  from  the  obligation  to 
deliver,  and  the  buyer  from  obligation  to  pay.^*°  If,  however, 
the  property  has  already  passed,  although  the  goods  are  still 
in  the  possession  of  the  seller,  the  buyer  must  pay  the  price.^*^ 
So  where  goods  are  to  be  manufactured  in  a  particular  factory, 
which  is  destroyed. -^^  or  grown  in  a  particular  field,  and  the 
crop  fails,^^'  the  seller  and  the  buyer  are  excused. 

206  Kearon  v.  Pearson,  7  Huii.  &  N.  3SG,  31  I^aw  J.  Excli.  1;  liar- 
iiiouy  V.  liiiiKham.  12  N.  Y.  99,  G2  Am.  Dec.  142;  Bacon  v.  Cobb,  45 
111.  47  (seizure  of  railroad  by  government  to  transport  troops). 

200  Barker  v.  Hodgson.  3  Maule  &  S.  207. 

207  Jones  V.  U.  S..  9G  U.  S.  24,  24  L.  Etl.  G44;  Booth  v.  Mill  Co.. 
CO  N.  Y.  4S7. 

20  8  Eddy  V.  Clement.  .38  Vt.  4SG. 

208  Clark,  Cont.  (2d  Ed.)  475. 

210  Rugs  V.  Minctt,  11  E:ist,  210;  Howell  v.  Coupland.  L.  R.  0  Q. 
B.  402.  1  Q.  B.  Div.  258;  Dexter  v.  Norton.  47  N.  Y.  02.  7  Am.  Rep. 
415;  Thompson  v.  Gould,  20  Pick.  (Mass.)  134.  139;  Wells  v.  Calnan. 
107  Mass.  514,  0  Am.  Hop.  05;  Gould  v.  Murch.  70  Me.  28'^.  35  .\m. 
Rep.  .325.  See  Sale  of  Goods  Act,  §  7;  Sales  Act,  §  8.  The  latter 
.•ict  adds  a  subsection  to  cover  the  case  of  deterioration  or  partial 
destruction,  which  Prof.  Williston  says  is  boliovod  to  express  the 
existing  law.     See  McMillan  v.  Fox.  90  Wis.  173.  02  N.  W.  1052. 

211  Taylor  v.  Caldwell.  3  Best  &  S.  820.  .32  Law  J.  Q.  B.  104,  per 
Blackburn.  .T.  Ante.  p.  141.  So  if  by  agreement  the  risk  has  pars- 
ed to  the  buyer.     Ante,  p.  14J2. 

212  See  Stewart  v.  Stone.  127  N.  Y.  .500,  28  N.  E.  595.  14  L.  R.  A. 
215.     Where  defendant  contracted  to  sell  a  cargo  of  cotton  seed  to 

218  Howell  V.  Coupland.  1  Q.  B.  Div.  258.  Cf.  Anderson  v.  May,  60 
Mtnn.  280,  52  N.  W.  530.  17  L.  R.  A.  555,  36  Am.  St.  Rep.  042. 


310  PERFOEMANCE  OF  CONTRACT.  (Ch.  8 

The  distinction  between  cases  in  which  the  destruction  of  the 
thing  sold  is  held  to  be  an  excuse,  and  those  in  which  the  per- 
formance is  prevented  by  other  causes  beyond  the  promisor's 
control,  is  also  sometimes  placed  upon  the  ground  that  in  the 
former  cases  the  performance  is  physically  impossible,  "quod 
natura  fieri  non  concedit,"  and  that  in  tlie  latter  cases  perform- 
ance is  in  its  nature  possible,  notwithstanding  that  the  promisor 
is  unable  to  perform  it.^^* 

Same — Legal  Impossibility. 

A  second  exception  arises  where  the  impossibility  resulting 
is  created  by  the  law.  If,  after  the  contract  is  entered  into,  a 
statute  is  passed  rendering  it  illegal,  the  promisor  is  no  longer 
bound.^^^ 

be  shipped  at  A.  during  January  per  ship  O.,  and  the  ship  stranded 
in  December,  so  that  shipment  in  January  became  impossible,  the 
seller  was  not  liable  for  failure  to  ship.  Nickoll  v.  Ashton  &  Co. 
(1901)  2  K.  B.  126. 

214  Jones  V.  tJ.  S.,  96  U.  S.  24,  24  L.  Ed.  644,  per  Clifford,  J.; 
Benj.  Sales,  §  570. 

aiBBaily  v.  De  Crespigny,  L.  R.  4  Q.  B.  180;  Brick  Presbyterian 
Church  V.  City  of  New  York,  5  Cow.  (N.  Y.)  538;  Oordes  v.  Miller, 
39  Mich.  581,  33  Am.  Rep.  430;  Mississippi  &  T.  R.  Co.  v.  Green, 
9  Heisk.  (Tenn.)  588;  Clark,  Cont.  (2d  Ed.)  474.  As  to  impossibility 
arising  from  the  action  of  the  courts,  see  Malcomson  v.  Mills  (C. 
C.)  88  Fed.  680;    Clark,  Cont.  (2d  Ed.)  475. 

Where  defendants  sold  certain  coffee  to  plaintiff,  to  be  delivered 
at  New  York  at  a  certain  time,  the  refusal  of  the  board  of  health 
to  allow  the  coffee  to  land  rendered  the  contract  impossible  of  per- 
formance according  to  its  terms,  so  as  to  excuse  defendants  from 
such  performance.  J.  H.  Labaree  v.  Grossman,  100  App.  Div.  499,  92 
N.  Y.  Supp.  565,  affirmed  184  N.  Y.  586,  77  N.  B.  1189. 


^   lUU)       UlUUTS  or  LNi'AIU  .SKI.LEK  AUAINsT  Till:  GUUDS.        iil  1 

CHAPTER  IX. 

RIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS. 

100.  In  General. 

101-10.-),  Seller's  Lien, 

10tJ-101>il..  Stoppapo   In   Transitu. 

110.  Ripht  of  Resale. 

111.  Rlgbt  to  Rescind. 

IN   GENERAL. 

100.  Notwithstanding  that  the  property  In  the  Roods  may 
have  passed  to  the  buyer,  the  unpaid  seller,  as  such, 
may  have   certain  rights  against  the  goods,   viz.: 

(a)  A  lien  on  the  goods  or  right  to  retain  them  for  the  price 

while  he  is  in  possession  of  them. 

(b)  In  case  of  the   insolvency  of   the  buyer,  a  right   of  stop- 

ping the   goods  in   transitu    after   he   has    parted  -with 
the  possession  of  them. 

(c)  A  right  of  resale. 

(d)  A  right,  in  some  jurisdictions,  to  rescind  the  sale.i 

When  the  property  in  goods  passes  by  a  sale,  it  does  not 
follow  necessarily  that  the  rijii^ht  of  possession  also  passes.  So 
long-  as  the  goods  remain  in  the  seller's  possession  he  has,  un- 
less he  has  waived  it,  a  lien  for  the  payment  of  the  price.  Even 
if  they  have  passed  out  of  his  actual  possession  into  the  hands 
of  a  carrier  for  delivery  to  the  buyer,  he  has  the  right,  in  case 
of  the  latter's  insolvency,  to  intercept  the  goods,  and  to  prevent 
them  from  coming  into  his  actual  possession.*  \\'hen  he  has 
exercised  his  right  of  lien  or  of  stoppage  in  transitu,  he  has, 
under  certain  circumstances,  the  right  to  resell  the  goods  ; '  and 
in  many  jurisdictions  he  has  the  right,  under  certain  circum- 
stances, to  rescind  the  sale  and  resume  the  property  in  the 
goods.* 

1  See  Sales  Act,  S  53.  •  Post,  p.    '.".n. 

a  Post,  p.  822.  *  Post,  p.  342. 


812       RIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS.       (Ch.  9 


SELLER'S  LIEN. 

101.  The  unpaid  seller  of  goods,  -who  is  in  possession  of  them, 

is  entitled  to  a  lien  for  the  price,  unless  he  has,  ex- 
pressly or  by  implication,  -w^aived  it;  that  is,  he  is  en- 
titled to  retain  possession  of  the  goods  until  payment 
or   tender   of   the   price. 

102.  "WAIVER  BY  GIVING  CREDIT.     The  seller  waives  his 

lien  by  implication,  unless  there  is  an  agreement  to 
the  contrary: 

(a)  If  he  sells  the  goods  on  credit. 

(b)  If  he  takes  a  bill   of  exchange   or  other  negotiable   in- 

strument in  conditional  payment. 

103.  REVIVAL.     The  lien  of  a  seller  who  is  still  in  possession 

of  the  goods  revives: 

(a)  "When  the  goods  have  been  sold  on  credit,  but  the  term 

of  credit  has  expired. 

(b)  When  the  seller  has  taken  a  bill  of  exchange  or  other 

negotiable  instrument  in  conditional  payment,  and 
the  condition  on  w^hich  it  -was  received  has  been  brok- 
en by  the  dishonor  of  the  instrument  or  otherwise. 
{o)  When  the  goods  have  been  sold  on  credit,  or  the  seller 
has  taken  a  negotiable  instrument  in  conditional  pay- 
ment, and  the  buyer  becomes  insolvent,  although  the 
term  of  credit  has  not  expired  or  the  instrument  re- 
ceived in  conditional  payment  has  not  matured,  and 
notwithstanding  that  the  seller  is  in  possession  of  the 
goods  as  agent  or  bailee  for  the  buyer.^ 

104.  TERMINATION.      The  seller  loses  his  lien: 

(a)  When  he  unconditionally  delivers  the  goods  to  the  buy- 

er or  his  agent;  subject,  however,  to  the  revival  of 
the  lien  if  he  continues  in  possession  of  the  goods  as 
agent  or  bailee  for  the  buyer  and  the  buyer  becomes 
insolvent,   as   stated   in    the   last    section   (c). 

(b)  AVhen  he  assents  to  a  subsale. 

105.  DELIVERY  OF  PART.      W^hen  the  seller  has  made  part 

delivery  of  the  goods,  he  may  exercise  his  right  of  lien 
on  the  remainder,  unless  such  delivery  has  been  made 
under  such  circumstances  as  to  show^  an  intention  of 
w^aiving  his  lien.^ 

B  For  statutory  changes  in  respect  to  the  seller's  right  to  exercise 
his  Hen  -when  In  jwssession  as  agent  or  bailee  of  the  buyer,  post, 
p.  318. 

«  Sales  Act,  §  55. 


§§  101-105)  seller's  lien.  313 

A  "lien,"  in  general,  may  be  defined  as  a  ri^ht  to  retain  the 
possession  of  a  thing  until  a  debt  due  to  the  person  retaining 
possession  is  satisfied/  The  origin  of  the  seller's  lien  is  floubt- 
ful,  but  it  is  probably  founded  on  the  custom  of  merchants.* 
It  has  been  said  that  "the  term  'lien'  is  unfortunate,  because  the 
seller's  rights,  arising  out  of  his  original  ownership,  in  all  cases 
exceed  a  mere  lien."  "  That  his  rights  exceed  a  mere  lien  will 
appear  from  a  consideration  of  the  peculiar  rights  which  arise 
in  case  of  the  buyer's  insolvency  ^°  and  of  the  seller's  right  to 
resell.^  ^  But  as  the  rule  is  that  when  there  is  no  agreement, 
express  or  implied,  to  the  contrary,  the  seller  has  a  right  to  re- 
tain the  goods  until  the  payment  or  tender  of  the  price,  he  has 
in  all  cases,  at  least,  a  lien,  unless  he  has  waived  it.^^ 

The  lien  extends  only  to  the  price.  If,  by  reason  of  the 
buyer's  default  in  payment,  the  seller  incurs  warehouse  charges 
or  other  expenses  in  keeping  the  goods,  his  lien  does  not  extend 
to  such  charges,  which  are  incurred  for  his  own  benefit,  and  not 
for  the  benefit  of  the  buyer ;  and  his  remedy,  if  any,  is  a  per- 
sonal one  against  the  buyer.^' 

T  BenJ.  Snles,  §  796. 
8  Blackb.  Sales,  453. 
0  Chalm.  Sale  of  Goods  Act  (dth   Eel.)  83. 

10  rnst.   p.   315. 

11  Post,  p.  .3.30.  Soe  Tuthlll  v.  Skidiuore,  124  N.  Y.  148.  26  N.  E. 
348;    Arnold  v.  Carpenter.  If!  R.  I.  5G0.  18  Atl.  174,  5  I..  R.  A.  357. 

12  Miles  V.  Gorton,  2  Cronip.  &  M.  504:  Arnold  v.  Delano,  4  Gush. 
(Mass.)  33,  39,  50  Am.  Dec.  754;  Ware  River  R.  Co.  v.  VIbbard,  114 
Mass.  447:  Cornwall  v.  ITalKht.  8  Barb,  (N.  Y.)  327;  Owens  v.  Weed- 
man,  82  111.  409;  Bradley  v.  Mlcbael,  1  Ind.  551;  Southwestern 
Freight  &  Cotton  Tress  Co.  v.  Stanard.  44  Mo.  71,  100  Am.  Dec. 
255;   Conrad  v.  Fisher,  37  Mo.  App.  352,  8  L.  R.  A.  147. 

A  tender  of  the  price  terminates  the  lien.  Crug  v.  Gorhara,  74 
Conn.  541,  51  Atl.  519.     See  Sales  Act,  §  54  (1)  (a). 

IS  See  British  Empire  Shipping  Co.  v.  Somes,  El..  Bl.  &  El.  353,  27 
I>;iw  J.  Q.  B.  397;  in  e.xchequer  chamber,  El„  Bl.  &  El.  307,  28  I>aw 
.T.  Q.  B.  220:  in  house  of  lords.  8  II.  L.  Cas.  338,  30  Law  .T.  Q.  B. 
229;  Crommolin  v.  Railroad  Co.,  '43  N.  Y.  90;  Burke  v.  Dunn.  117 
Mich.  430,  75  N.  W.  931.  If  the  buyer  refuses  to  accept  the  g<KKl.«» 
sold  until  the  seller  recovers  judgment  for  the  price,  the  buyer 
cannot  recover  for  the  care  of  the  goods  between  the  sale  and  the 
delivery,  since  the  care  of  them  in  the  meantime  Is  for  his  own 
benefit.  Putnam  v.  Glidden.  1.59  Mass.  47,  34  N.  E.  81,  38  Am.  St 
Rep.  30I. 


314       EIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS.      (Ch.  9 

A  special  interest  in  the  goods  may  continue  to  exist  in  the 
seller  by  agreement,  even  after  delivery;  but  such  an  interest 
is  not  strictly  a  lien,  which  is  always  determinable  on  the  loss 
of  possession.^* 

Waiver  of  Lien. 

"Lien  is  not  the  result  of  an  express  contract ;  it  is  given  by 
implication  of  law."  ^°  The  lien  may,  of  course,  be  waived  ex- 
pressly. It  may  also  be  waived  by  implication,^®  as  by  reserv- 
ing an  express  lien  for  the  price,  which  excludes  an  implied 
one.^^ 

The  lien  is  waived  by  implication  when  time  is  given  for  pay- 
ment, and  nothing  is  said  as  to  delivery, — in  other  words,  when 
the  sale  is  on  credit;  ^^  although,  the  parties  may,  of  course, 
agree  that  notwithstanding  the  credit  the  goods  are  not  to  be 
dehvered  until  payment,  and  the  same  term  may  be  introduced 
into  the  contract  by  a  usage  to  that  effect.^"  The  seller  also 
waives  his  lien  by  taking  a  bill  or  note  payable  at  a  distant 
day,^°  though  the  lien  revives  on  its  dishonor  or  on  the  insol- 
vency of  the  buyer.^^ 

KDodsley  v.  Varley,  12  Adol.  &  E.  632;  Gregory  v.  Morris,  96 
U.  S.  619,  24  L.  Ed.  740;  Sawyer  v.  Fisher,  32  Me.  28.  See  Wood- 
land Co.  V.  Mendenhall,  82  Minn.  483,  85  N.  W.  164,  83  Am.  St.  Rep. 
445. 

15  Chambers  v.  Davidson,  L.  R.  1  P.  C.  296,  4  Moore,  P.  C.  (N.  S.) 
158,  per  Lord  Westbury. 

18  When  the  seller  of  standing  wood  permitted  the  buyer  to  cut 
It,  he  waived  his  lien.  Douglas  v.  Shumway,  13  Gray  (Mass.)  499. 
See,  also,  Allen  v.  Kushford,  72  Neb.  907,  101  N.  W.  1028.  See  Sales 
Act,  §  56  (1)  (c). 

17  In  re  Leith's  Estate,  L.  R.  1  P.  C,  at  page  305.  An  agreement 
inconsistent  with  the  existence  of  the  lien  is  a  waiver  of  it.  Pickett 
V.  Bullock,  52  N.  H.  354. 

18  Spartali  v.  Beneeke,  10  C.  B.  212,  19  Law  J.  C.  P.  293;  Leonard 
V.  Davis,  1  Black.  (N.  S.)  476.  17  L.  Ed.  222:  Arnold  v.  Delano,  4 
Cush.  (Mass.)  33,  39,  50  Am.  Dee.  754;  McCraw  v.  Gilmer,  83  N. 
C.  162;  Crummey  v.  Raudenbush,  55  Minn.  426,  56  N.  W.  1113; 
McElwee  v.  Lumber  Co.,  69  Fed.  302,  16  C.  C.  A.  232;    ante,  p.   269. 

18  Field  V.  Lelean,  6  Hurl.  &  N.  617,  30  Law  J.  Exch.  168. 

20  Valpy  V.  Oakeley,  16  Q.  B.  941,  951;  Griffiths  v.  Perry,  28  Law 
J.  Q.  B.  204,  207;  McElwee  v.  Lumber  Co.,  69  Fed.  302.  16  C.  C.  A. 
2.32.     See.  also.  Hewlson  v.  (^lUthrie,  2  Bing.  N.  C.  7.55;    Horncastle 

21  Post,  p.  315. 


§§  101-105)  SKLI.Ek's   LIKN.  315 

Rcrizal  of  Lien — Expiration  of  Credit. 

Altlioiij^li  the  sale  is  on  credit,  if  the  Ijiiycr  permits  the  goods 
to  remain  in  the  seller's  possession  till  the  credit  has  expired, 
the  lien  which  was  waived  hy  the  giving  of  credit  revives,  even 
though  the  buyer  may  not  be  insolvent.^'  And  the  rule  is  the 
same  where  hills  or  notes  are  given  for  the  price,  which  are  dis- 
honored while  the  goods  are  still  in  the  seller's  possession." 

Insolvency  of  Buyer. 

If  the  buyer  becomes  insolvent  ^*  while  the  goods  are  in  pos- 
session of  the  seller,  the  lien  revives  notwithstanding  that  the 
goods  were  sold  on  credit,  and  that  the  credit  has  not  expired.*' 
The  lien  also  revives  on  insolvency,  when  conditional  payment 
was  made  by  bill  or  note,  although  the  instrument  has  not  yet 
matured.*®     This  right  to  revive  the  lien  is  analogous  to  the 

V.  Farran,  3  Barn.  &  Aid.  407.  Giving  a  promissory  note,  payable  on 
demand,  for  the  price,  does  not  divest  the  lieu.  Clark  v.  Draper, 
10  N.  H.  410. 

22  New  V.  iSwaln,  1  Dan.  &  L,  103;  Bunney  v.  Poyntz,  4  Barn.  & 
Adol.  5G8;  Martludale  v.  Smith,  1  Q.  B.,  at  pa.u'o  305;  Owens  v. 
Weedman,  82  111.  4(»0;  Benj.  Sales,  §  825.    See  Sales  Act,  §  54  (1)  (b). 

-3  Valpy  V.  Oakeley,  10  Q.  B.  941,  20  Law  J.  g.  B.  3S0;  Griffiths 
V.  Perry,  1  El.  &  El.  G80,  28  Law  J.  Q.  B.  204.  See  Sales  Act,  9  52 
(1)  (b). 

2*  Meaning  of  insolvency,  post,  p.  825.    See  Sales  Act,  §  70  (.1). 

2oBloxam  v.  Sanders,  4  Barn.  &  C.  941;  Blo.Kam  v.  Morloy,  Id. 
051;  Gritliths  v.  Perry,  1  El.  &  El.  OSO,  28  Law  J.  Q,  B.  204;  Gunn 
V.  Bolckow,  10  Ch.  App.  491 ;  Arnold  v.  Delano.  4  Cush.  (Mass.) 
33,  50  Am.  Dec.  754;  Parks  v.  Hall,  2  Pick.  (Mass.)  20(3,  212;  Parker 
V.  Byrnes,  1  Low.  (U.  S.)  539,  Fed.  Cas.  No.  10.728,  per  Lowell.  J.; 
Haskell  v.  Kice,  11  Gray  (Mass.)  240,  per  Thomas,  J.;  Wanaraaker 
V.  Yorkes.  70  Pa.  443;  Tutiilll  v.  Skidmore,  124  N.  Y.  148,  26  N.  E. 
348;  Southwestern  Freight  &  Cotton  Press  Co.  v.  Stanard,  44  Mo. 
71,  100  Am.  Dec.  255;  Conrad  v.  Fisher,  37  Mo.  App.  352,  8  L.  R. 
A.  147;  Crummey  v.  Raudeubush,  55  Minn.  420.  50  N.  W.  1113; 
Robinson  v.  Morgan,  G5  Vt.  37,  25  Atl.  899;  Bohn  Mfg.  Co.  v.  Hynes, 
83  Wis.  388,  53  N.  W.  084.  See.  also.  Akeley  v.  Boom  Co..  64  Minn. 
108,  113,  67  N.  W.  208.  Contra,  Barrett  v.  Goddard,  3  Mason  (N. 
S.)  107,  Fed.  Cas.  No.  1.40(5.  It  is  immaterial  whether  the  sale  Is 
of  specific  chattels  or  whether  the  contract  is  executory.  Griffiths 
V.  Perry,  1  El.  &  El.  680,  28  Law  J.  Q.  B.  2<)4.  See  Sales  Act,  §  54 
(1)  (c). 

20  Valpy  V.  Oakeley,  16  Q.  B.  941,  20  Law  J.  Q.  B.  380;  Griffiths 
V.  Perry,  1  El.  &  El.  680.  28  Law  J.  Q.  B.  204;  Arnold  v.  Delano. 
4  Gush.  (Mass.)  33,  41.  50  Am.  Dec.  754;    Parker  v.  Byrnes,  1  Ix)W. 


316        RIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS.       (Ch.  9 

right  of  stoppage  in  transitu,  and  has  sometimes  been  called 
the  right  of  "stoppage  ante  transitum."  ^^  "The  vendor's  right 
in  respect  of  his  price,"  said  Bailey,  J.,  in  the  leading  case  of 
Bloxam  v.  Sanders,^ ^  "is  not  a  mere  lien  which  he  will  forfeit 
if  he  parts  with  the  possession,  but  grows  out  of  his  original 
ownership  and  dominion.  If  the  goods  are  sold  on  credit,  and 
nothing  is  agreed  on  as  to  the  time  of  delivering  the  goods,  the 
vendee  is  immediately  entitled  to  the  possession ;  and  the  right 
of  possession  and  the  right  of  property  vest  at  once  in  himj 
but  his  right  of  possession  is  not  absolute ;  it  is  liable  to  be  de- 
feated if  he  becomes  insolvent  before  he  obtains  possession. 
If  the  seller  has  dispatched  the  goods  to  the  buyer,  and  insol- 
vency occurs,  he  has  a  right,  in  virtue  of  his  original  ownership,. 
to  stop  them  in  transitu.  Why  ?  Because  the  property  vested 
in  the  buyer  so  as  to  subject  him  to  the  risk  of  any  accident; 
but  he  has  not  an  indefeasible  right  to  the  possession,  and  his 
insolvency,  without  payment  of  the  price,  defeats  that  right." 
The  same  principle  was  clearly  stated  in  a  Pennsylvania  case :  ^* 
"Judges  do  not  ordinarily  distinguish  between  the  retainer  of 
goods  by  a  vendor  and  their  stoppage  in  transitu  on  account  of 
the  insolvency  of  the  vendee ;  because  these  terms  refer  to  the 
same  right,  only  at  different  stages  of  performance  and  execu- 
tion of  the  contract  of  sale.  If  the  vendor  has  a  right  to  stop  in 
transitu,  a  fortiori  he  has  a  right  of  retainer  before  any  transit 
has  commenced." 


(U.  S.)  539,  Fed.  Cas.  No.  10,728,  per  Lowell,  J.;  Milliken  v.  War- 
reu,  57  Me.  46.  It  is  immaterial  wliether  the  notes  are  taken  in 
payment  or  as  security.  In  re  Batchelder.  2  Low.  (U.  S.)  245,  Fed. 
Cas.  No.  1,009:  Hunter  v.  Talbot,  3  Smedes  &  M.  (Miss.)  754.  Where 
payment  is  to  be  on  delivery  in  notes  of  a  third  person,  who  be- 
comes insolvent,  the  seller  need  not  deliver  on  tender  of  such  notes. 
Benedict  v.  Field,  16  N.  Y.  595. 

"This  revesting  of  the  lien  is  not  affected  by  the  fact  that  *  •  * 
such  notes  or  bills  have  been  negotiated  so  that  they  were  out- 
standing when  they  matured,  or  unmatured  and  outstanding  when 
the  insolvency  occurred."  McElwee  v.  Lumber  Co.,  09  Fed.  302,  308, 
10  C.  C.  A.  232.  See.  also,  Brewer  Lumber  Co.  v.  Railroad  Co.,  179 
Mass.  228,  60  N.  E.  548,  54  L.  R.  A.  435,  88  Am.  St.  Rep.  375. 

2  7  Benj.  Sales,   §  767. 

28  4  Barn.  &  C.  941. 

29  White  V.  Welsh,  .38  Pa.  300.  per  Lowrie,  C.  J. 


§§  101-105)  SELLEU'S    LIEN.  817 

Even  if  the  seller  has  broken  his  contract  to  deliver  while  the 
buyer  is  solvent,  the  lien  revives  on  the  buyer  becoming  in- 
solvent.'" 

It  follows  naturally,  from  the  principle  on  which  this  right 
rests,  that  the  seller  docs  not  lose  his  right  to  revive  the  lien  on 
the  insolvency  of  the  buyer,  although  he  may  have  agreed  to 
hold  the  goods  as  the  buyer's  bailee.'^  As  in  the  case  of  stop- 
page in  transitu,  the  right  is  not  lost  by  a  technical  delivery,  so 
long  as  the  seller  is  in  a  position  to  prevent  the  goods  from 
coming  into  the  buyer's  actual  possession. 

Termination  of  Lien — Delivery. 

Inasmuch  as  the  right  of  lien  is  a  right  incident  to  possession, 
the  seller  loses  his  lien  when  he  unconditionally  delivers  the 
goods  to  the  buyer.'^  But  if  the  delivery  be  upon  the  under- 
standing, express  or  implied,  that  the  seller  is  to  receive  im- 
mediate payment,  he  does  not  lose  his  lien,  but  may  reclaim  the 

30  Valpy  V.  Oakeley,  16  Q.  B.  941,  20  Law  J.  Q.  B.  380;  GriOitbs 
V.  rorry.  1  M.  &  El.  GSO.  2S  Law  J.  Q.  B.  204. 

31  Townley  v.  Criniip,  4  Adol.  &  E.  58;  Grice  v.  Richardson.  3  App. 
Cas.  311);  Arnold  v.  Delano,  4  Cush.  (Mass.)  33,  38.  50  Am.  Dec. 
75-1;  Thompson  v.  liailroad  Co.,  28  Md.  396;  Conrad  v.  Fisher,  37 
Mo.  App.  353,  8  L.  R.  A.  147;  Hamburger  v.  Rodman.  9  Daly  (N. 
Y.)  93,  96. 

By  Sales  Act.  §  54  (2),  following  Sale  of  Goods  Act,  §  41  (2), 
the  right  of  the  seller  holding  as  bailee  to  exercise  his  right  of  lien 
Is  not  contined  to  cases  where  the  buyer  is  insolvent.     Po.st,  p.   318. 

3::  Gregory  v.  Morris,  96  U.  S.  019.  023,  24  L.  Ed.  740;  Arnold  v. 
Delano.  4  Cush.  (Mass.)  33,  39,  50  Am.  Dec.  754;  Haskins  v.  Warren, 
115  Mass.  514.  533;  Lupin  v.  Marie.  6  Wend.  (N.  Y.)  77,  21  Am. 
Dec.  256;  Bowen  v.  Burk.  13  Pa.  146;  Johnson  v.  Farnum,  56 
Ga.  144;  Cook  v.  Perry,  43  Mich.  629.  5  N.  W.  1054;  Thompson  v. 
Wedge,  50  Wis.  642,  7  N.  W.  560;  Slack  v.  Collins,  145  Intl.  5<S>, 
42  N.  E.  910;  Mey<M-s  v.  McAllister,  94  Minn.  510.  103  X.  W.  564. 
Delivery  is  not  efTocted  by  merely  marking  the  goods  with  the 
buyer's  name  or  setting  them  aside.  Goodall  v.  Skelton,  2  IL  Bl. 
316;  Dixon  v.  Yates,  5  Barn.  &  Adol.  313;  Townley  v.  Crump.  4 
Adol.  &  E.  58.  Or  by  boxing  thom  by  the  buyer's  orders,  so  long  as 
the  seller  holds  them  as  his.  and  has  not  given  credit.  Boulter 
V.  .\rnott.  1  Cromp.  &  M.  333.  See,  also,  Perrine  v.  Barnard,  142 
Ind.  448.  41  N.  E.  820. 

"When  the  buyer  or  his  agent  lawfully  obtains  possession  of  the 
goods."  Sales  Act,  §  56  (1)  (I)).     Cf.  section  76  (1)  ("delivery"). 


318        RIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS.      (Ch.  9 

goods  if  payment  be  not  made.^^  The  seller  may  also  lose  his 
lien  by  a  constructive  delivery.  "When  the  buyer  is  solvent,  the 
cases  as  to  what  constitutes  an  'actual  receipt,'  within  the  mean- 
ing of  the  statute  of  frauds,  appear  to  furnish  the  test  whether 
the  seller's  lien  is  gone  or  not."  ^*  "The  principle,"  says  Black- 
burn, J.,^®  "is  that  there  cannot  be  an  actual  receipt  by  the  ven- 
dee so  long  as  the  goods  continue  in  the  possession  of  the  seller, 
so  as  to  preserve  his  lien.  But  though  the  goods  remain  in  the 
personal  possession  of  the  vendor,  yet  if  it  is  agreed  between 
the  vendor  and  the  vendee  that  the  possession  shall  henceforth 
be  kept,  not  as  vendor,  but  as  bailee  for  the  purchaser,  the  right 
of  lien  is  gone,  and  then  there  is  sufficient  receipt  to  satisfy 
the  statute."  When  the  buyer  is  insolvent,  since  the  lien  re- 
vives notwithstanding  that  the  seller  holds  the  goods  as  bailee 
for  the  buyer,  the  cases  as  to  what  constitutes  an  actual  receipt 
no  longer  furnish  a  test. 

If  the  goods  are  in  possession  of  the  seller,  it  seems  that  a 
delivery  takes  place,  and  the  seller's  lien  is  divested,  whenever 
the  parties  agree  that  the  seller  shall  thenceforth  hold  as  the 
bailee  of  the  buyer.^®  In  England,  however,  this  has  been 
changed  by  the  Sale  of  Goods  Act,^''  following  which  the  pro- 
posed American  Sales  Act  provides :  "The  seller  may  exercise 
his  right  of  lien,  notwithstanding  that  he  is  in  possession  of  the 
goods  as  agent  or  bailee  of  the  buyer."  ^® 

If  the  goods  are  in  the  possession  of  the  buyer,  the  effect  of 
the  contract  being  to  transfer  the  right  of  possession  as  well 
as  that  of  property,  the  delivery  becomes  complete,  by  necessity, 
without  further  act  on  either  side.^® 

83  Ante,  p.  124.  See  McGill  v.  Lumber  Co.,  Ill  Tenn.  552,  82  S. 
W.  210. 

84  Chalm.  Sales,  62. 

SB  Cusack  V.  Robinson,  30  Law  J.  Q.  B.,  at  page  2G4 ;  ante,  p.  94. 

"But  this  proposition  must  now  be  taken  subject  to  the  provisions 
of  section  41  (2)"  Sale  of  Goods  Act.  Chalm.  Sale  of  Goods  Act  (6tli 
Ed.)  89. 

88  Cusack  V.  Robinson,  supra.  But  see  Conrad  v.  Fisher,  37  Mo. 
App.  352.  8  L.  R.  A.  147;    ante,  p.  95. 

37  Section   41    (2). 

88  Section  .54  (2). 

3  0  In  re  Batchelder,  2  Low.  (U.  S.)  245,  Fed.  Cas.  No.  1,099;  War- 
den V.  Marshall,  99  Mass.  305;  Martin  v.  Adams,  104  Mass.  262; 
BenJ.  Sales,  §  802;    ante,  p.  97. 


§§  101-105)  seller's  lien.  319 

If  the  goods  are  in  the  possession  of  a  third  person  as  bailee 
of  the  seller,  a  delivery  takes  place  whenever  such  third  person, 
with  the  seller's  assent,  attorns  to  the  buyer,  and  not  before.*" 
Thus  the  transfer  of  a  delivery  order,  dock  warrant,  or  other 
document,  which  operates  only  as  a  token  of  authority  to  take 
possession,  and  not  as  a  transfer  of  possession,  does  not  divest 
the  seller's  lien,  but  the  person  in  whose  custody  the  goods  are 
must  first  accept  the  order,  or  in  some  way  attorn  to  the  buyer, 
and  until  such  attornment  the  seller  may  countermand  his  au- 
thority ;  and,  even  though  the  seller  may  have  waived  his  lien 
by  a  sale  on  credit  or  by  accepting  conditional  payment,  he  may 
nevertheless,  upon  the  occurrence  of  the  buyer's  insolvency  be- 
fore such  attornment,  countermand  the  authority,  and  revive  his 
lien.*^  Under  the  factors'  acts  and  other  enactments,  how- 
ever, certain  other  documents  are  in  many  jurisdictions  put  on 
the  same  footing  as  bills  of  lading,*^  and  a  transfer  of  such 
documents  excludes  the  lien,  if  the  documents  get  into  the  hands 
of  a  holder  for  value.'*' 

Same — Delivery  to  Carrier. 

Delivery  to  a  common  carrier  or  other  bailee  for  convey- 
ance to  the  buyer  is  prima  facie  such  a  delivery  of  possession 

*oMcEwan  v.  Smith,  2  H.  L.  Cas.  300;  Farina  v.  Homo.  Hi  Mees. 
&  W.  119;  Keeler  v.  Goodwin,  111  Mass.  490;  In  re  Batclielder, 
2  rx)\v.  (U.  S.)  245.  Fed.  ('as.  No.  1.090;  ante,  p.  96. 

*i  McEwan  v.  Smith,  2  H.  L.  Cas.  309;  Arnold  v.  Delano,  4  Cush. 
(Mass.)  33,  39.  50  Am.  Dec.  754.  per  Shaw,  C.  J.;  Parker  v.  Byrnes, 
1  Low.  (U.  S.)  .539.  Fed.  Cas.  No.  10,7128;  Keelor  v.  Goodwin,  111  Mass. 
490. 

Where  goods  were  sold  to  be  paid  In  cash  on  delivery  of  the  ware- 
house receipt,  and  by  the  receipt  the  goods  were  deliveral)le  on 
return  of  the  receipt,  the  seller  did  not  part  with  his  lien  by  tender 
of  the  receipt  to  the  buyer ;  the  buyer  refusing  payment  and  tlie  sel- 
ler retaining  the  receipt.  Rhodes  v.  Mooney,  43  Ohio  SL  421,  4  N. 
B.  2,33. 

*-  Ante.  p.  38. 

<>  In  some  states,  warehouse  receipts  are  by  statute  put  on  the 
same  footing  as  bills  of  lading.  In  others  thoy  have  l)epn  given 
the  same  effect  by  the  courts  without  legislation.  See  Morcliants* 
l^ank  of  IVtrolt  v.  nibh.ard.  4R  Mich.  IIS,  11  N.  W.  8.34,  42  Am.  Rop. 
405;  Davis  v.  Russell.  .52  Cal.  Oil.  2R  Am.  Rop.  CI7;  Allen  v.  Maun-, 
no  .\la.  10;  ante.  p.  3.^     As  to  factor's  acts.  ante.  p.  38. 


320       RIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS.       (Ch.  9 

as  puts  an  end  to  the  seller's  lien.'**  The  right  of  lien  be- 
comes changed  into  a  right  of  stoppage  in  transitu  should  the 
buyer  become  insolvent.* °  The  seller  may,  however,  reserve 
the  right  of  possession  or  property  in  the  goods.*' 

Same — Assent  to  Subsale. 

At  common  law,  the  seller's  lien  is  not  affected  by  any  sale, 
pledge,  or  other  disposition  of  the  goods  which  the  buyer  may 
have  made,  unless  he  has  assented  thereto.*'^  This  follows, 
as  we  have  seen,  from  the  general  principle,  "Nemo  dat  quod 
non  habet."  **  Thus  where  goods  lying  in  a  warehouse  of  a 
third  person  were  sold,  but  not  delivered,  and  were  paid  for  in 
the  buyer's  acceptances,  which  were  subsequently  dishonored, 
and  before  they  became  due  the  buyer  sold  to  a  second  pur- 
chaser, it  was  held  that  the  second  purchaser,  who  had  not  ob- 
tained actual  or  constructive  possession,  was  in  the  same  posi- 
tion as  the  original  buyer,  and  got  his  title  defeasible  on  non- 
payment of  the  price  by  the  latter.*®  Nor  is  such  second  per- 
son in  a  better  position  by  reason  of  the  transfer  to  him  of  a 
delivery  order  or  other  document  the  transfer  of  which  does  not 
operate  as  a  delivery  of  the  goods,  unless  he  obtains  an  actual 
or  constructive  delivery  from  the  warehouseman  before  the 
original  seller  has  countermanded  the  authority  and  asserted 
his  lien.^° 

On  the  other  hand,  the  seller  may  be  estopped  from  asserting 
his  lien  by  assenting  to  the  subsale,  either  subsequently  ^^  or 

44  Ante,  p.  04.  See  Sales  Act,  §  56  (1)  (a).  Cf.  Sale  of  Goods 
Act  §  43  (1)  (a). 

4  6  Post,  p.  322. 

4«  Ante,  p.  162.  ISIcDonald  Cbtton  Co.  v.  Mayo  (Miss.)  38  South. 
372.     See  Sales  Act,  §  53  (2). 

47  Dixon  V.  Yates,  5  Barn.  &  Adol.  313;  Palmer  v.  Hand,  13  Johns. 
(N.  Y.)  434,  7  Am.  Dec.  392;  Milliken  v.  Warren,  57  Me.  46:  Haskell 
V.  Rice,  11  Gray  (Mass.)  240,  241;  McElwee  v.  Lumber  Co.,  69  Fed. 
302,  16  C.  C.  A.  232;  Perrine  v.  Barnard,  142  Ind.  448,  41  N.  E.  820l 
See  Sales  Act,  §  62. 

4  8  Ante,  p.  27. 

4»  Dixon  V.  Yates,  5  Barn.  &  Adol.  313. 

60  McEwan  v.  Smith,  2  H.  L.  Cas.  309;  Farmeloe  v.  Bain,  1  C. 
P.  Div,  445;  Gunn  v.  Bolckow,  10  Ch.  App.  496;  Keeler  v.  Goodwin, 
111  Mass.  490;    Ander.sou  v.  Read,  106  N,  Y.  333,  13  N.  E.  292. 

61  Stoveld  V.  Hughes,  14  East,  308;    Pearson  v.  Dawson,  El.,  Bl. 


§§  101-105)  SELLEU'S    LIEN.  821 

in  advance."'  Thus  when  the  second  purchaser  of  timber  lying 
on  the  premises  of  the  orii;inal  seller  informed  him  of  the  sub- 
sale,  and  the  latter  said,  "Very  well,"  and  allowed  him  to  mark 
the  timber  with  his  name,  this  was  held  a  sufficient  subsequent 
ns'^cnt."'  A  seller  may  assent  in  advance  by  issuinj:^  to  the  buy- 
er documents  of  title  which  contain  such  representations  of 
fact  as  will  amount  to  an  estoppel  against  a  second  purchaser.** 

Same — Delivery  of  Part. 

Generally  speaking,  a  delivery  of  a  part  is  not  equivalent  to  a 
delivery  of  the  whole,  so  as  to  destroy  the  seller's  lien.  He 
may  give  up  part,  and  retain  the  rest,  and  maintain  a  lien  on 
the  part  retained  for  the  whole  price. '^'^  But  there  may  be  cir- 
cumstances sufficient  to  show  that  there  was  no  intention  to 
separate  the  part  delivered  from  the  rest,  and  then  the  delivery 
of  a  part  operates  as  delivery  of  the  whole."^'  If  the  delivery 
is  to  be  by  installments,  and  one  installment  has  been  delivered, 

&  EI.  448,  27  I^w  J.  Q.  B.  248;  Woodley  v.  Coventry,  2  Hurl.  &  G. 
1(14.  .32  Law  J.  Kxcb.  IS.");  Knights  v.  Wlffen,  L.  R.  5  Q.  B.  G(X>; 
Voorhis  V.  Ohustead,  66  N.  Y.  ll;j.  But  see  Southwestern  Freight 
&  Cotton  Exp.  Co.  V.  Plant,  45  Mo.  517.  Cf.  Ilollins  v.  Hubbard, 
165  N.  Y.  534,  59  N.  E.  317. 

82  Merchant  Banking  Co.  of  London  v.  Steel  Co.,  5  Ch.  Div.  205. 
Where  the  oii:,'inal  seller  showed  the  goods  as  the  goods  of  the 
buyer,  without  claim  of  Hen.  to  another,  who  afterwards  bought 
them,  the  latter's  title  was  sustained  against  the  seller's  assignee 
in  bankruptcy.  IIuiui  v.  Bowne,  2  Caiues  (N.  Y.)  38.  Cf.  McElwee 
V.  Lumber  Co.,  60  Fed.  302,  16  C.  C.  A.  232. 

83  Stoveld  V.  Hughes.  14  East.  ."^OS.  But  the  fact  that  the  seller, 
after  notice  of  a  subsale,  inquires  of  the  buyer  whether  he  shall 
ship  to  the  subpurchaser,  and  asks  for  a  shipping  order  both  from 
him  and  from  the  subpurchaser,  does  not  show  a  waiver  of  the 
lien.  Stoveld  v.  Hughes,  supra,  distinguished  In  Robinson  v.  Mor- 
gan, 65  Vt.  37.  25  Atl.  809. 

B«  Merchant  Banking  Co.  v.  Steel  Co.,  5  Ch.  Div.  205. 

r-s  Dixon  V.  Yates.  5  Barn.  &  Adol.  313,  341;  Miles  v.  Gorton, 
2  Cromp.  &  M.  504;  ILiskell  v.  Rice.  11  Gray  (Mass.)  240;  Ham- 
burger V.  Rodman,  9  Daly  (X.  Y.)  03;  Buckley  v.  Furniss.  17  Weiul. 
(N.  Y.)  .504  (stoppage  in  transitu);  McElwee  v.  Lumber  Co.,  60  Fed. 
302,  16  C.  C.  A.  232.  See  Parks  v.  Hall.  2  Pick.  (Mass.)  206.  A  car- 
rier may  retain  his  lien  for  the  whole  of  his  charges,  notwithstanding 
delivery  of  part.  Potts  v.  Railroad  Co.,  131  Mass.  455,  41  Am.  Kep. 
247.     See  Sales  Act.  §  5,5. 

»8  BenJ.  Sales,  §  805. 

TrFF.SAi,Es(2D  Ed.)— 21 


322       RIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS.      (Ch.  9 

but  not  paid  for,  the  seller  may,  at  least  if  the  buyer  is  in- 
solvent, withhold  delivery  of  the  others  until  he  has  been  paid 
for  the  installment  delivered.^^  Any  installment  which  has 
been  paid  for  must  be  delivered,  even  though  the  buyer  be  bank- 
rupt." 

Judgment  for  Price. 

The  seller  does  not  lose  his  lien  by  obtaining  judgment 
against  the  buyer  for  the  price,  but  the  lien  continues  so  long 
as  the  debt  is  unpaid. 


69 


STOPPAGE   IN   TRANSITU. 

106.  When  the  buyer  of  goods  is  6  0  or  becomes  insolvent,  the 

nnpaid  seller  xv'ho  has  parted  Twith  the  possession  of 
the  goods  has  the  right  of  stopping  them  in  transitu; 
that  is  to  say,  he  may  resume  possession  of  the  goods 
at  any  time  ivhile  they  aire  in  transit,  and  he  teill  then 
become  entitled  to  the  same  rights  in  regard  to  the 
goods  as  he  would  if  he  had  not  parted  with  the  pos- 
session.6i 

107.  "WHO  MAY  EXERCISE  THE  RIGHT.     The  right  of  stop- 

page in  transitu  may  be  exercised  by  an  agent  of  the 
seller  to  whom  the  bill  of  lading  has  been  indorsed,  or 
a  consignor  or  agent  who  has  himself  paid,  or  is  direct- 
ly responsible  for,  the  price,  or  any  other  person  ivho 
is  in  the  position  of  a  sellcr.6  2 

»7  Ex  parte  Chalmers,  8  Ch.  App.  289.  Whether  in  such  case  the 
seller  may  withhold  delivery  of  the  other  installments  if  the  buyer 
is  not  insolvent  seems  doubtful.  See  Chalm.  Sales,  p.  61.  This 
question  is  to  be  distinguished  from  the  question  whether,  if  the 
buyer  refuses  to  pay  for  one  installment,  the  seller  may  repudiate 
the  contract.    Ante,  p.  287. 

The  right  to  withhold  delivery  exists  as  well  in  a  contract  to 
sell  as  in  a  sale  of  specific  goods  where  the  property  has  passed. 
ESx  parte  Chalmers,  supra.  And  see  Griffiths  v.  Perry,  1  El.  &  El. 
280,  28  Law  J.  Q.  B.  204.     See  Sales  Act,  §  53  (2). 

68  Merchant  Banking  Co.  v.  Steel  Co.,  5  Ch,  Dlv.  205. 

6»  Woodland  Co.  v.  Mendenhall,  82  Minn.  483,  85  N.  W.  164, 
83  Am.  St.  Rep.  445;  Cragin  v.  O'Connell,  50  App.  Div.  339-,  63  N. 
Y.  Supp.  1071,  affirmed  169  N.  T.  573,  61  N.  E.  1128;  Honeditch  v. 
Desanges,  2  Starkie,  337;  Scrivener  v.  Railway  Co.,  19  Wkly.  Rep. 
888.    See  Sales  Act,  §  56  (2). 

«o  Post,  p.  326. 

ei  See  Sales  Act,  §  57.     Cf.  Sale  of  Ooods  Act,  44. 

«2  See  Sales  Act,  §  52  (2). 


I 


§<5  10G-109i)  STOITAGE    IN    TKANSITD.  3215 

108.  DURATION  OF  TRANSIT.«  '      Goods  are  deemcil  to  bo  In. 

transit  from  the  time  they  nre  delivered  to  a  carrier 
by  laud  or  water,  or  other  bailee,  for  the  purpose  of 
trausmissiou    to    the    buyer,    until — 

(a)  The    buyer  or   Lis   ageut  iu   his   behalf   takes   delivery  of 

then*   from   such  carrier   or   other  bailee;    or 

(b)  The  buyer,  or  his  agent  in  that  behalf,  obtains  delivery 

of  the  goods  before  their  arrival  at  the  appointed  des- 
tination;   or 

(c)  After  the  arrival  of  the  goods  at  their  appointed  destina- 

tion, the  carrier  or  other  bailee  attorns  to  the  buyer, 
and  continues  in  possession  of  them  as  bailee  for  the 
buyer;     or 

(d)  The  carrier  or  other  bailee  xvrongfully  refuses  to  deliver 

the  goods  to  the  buyer  or  his  agent  in  that  behalf. 

109.  HOAV  THE  RIGHT  IS  EXERCISED.    (1)  The  unpaid  seller 

may  exercise  his  right  of  stoppage  either  by  tailing  ac- 
tual possession  of  the  goods,  or  by  giving  notice  of  his 
claim  to  the  carrier  or  other  bailee  in  whose  i)osscssion 
the  goods  are.  Such  notice  may  be  given  to  the  i>er- 
Bon  in  actual  possession  of  the  goods  or  his  principal. 
In  the  latter  case  the  notice,  to  be  effectual,  must  bo 
given  at  such  time  and  under  such  circumstances  that 
the  principal,  by  the  exercise  of  reasonable  diligence, 
may  prevent  a  delivery  to  the  buyer. 
(2)  WTien  notice  of  stoppage  is  given  by  the  seller  to  the 
carrier  or  other  bailee  in  possession  of  the  goods,  he 
must  redeliver  the  goods  to,  or  in  accordance  vnth  the 
directions  of,  the  seller."  < 

109V2-  HO^V  THE  RIGHT  MAY  BE  DEFEATED.  The  right  of 
stopi^age  in  transitu  is  defeasible,  at  common  la^v,  iu 
one  way  only,  viz.  w^hen  the  goods  are  represented  by 
a  bill  of  lading,  and  the  buyer,  being  in  possession, 
thereof  w^ith  the  seller's  assent,  transfers  it  to  a  bona 
flde   purchaser   for  value. 

The  right  of  stoppage  in  transitu  is  founded  upon  mercantile 
rules,  and  is  borrowed  from  the  custom  of  merchants.  The 
doctrine  was  first  recognized  in  equity,  and  was  subsequently 
introduced  into  the  courts  of  common  law.'*  The  right  arises 
only  on  the  insolvency  of  the  buyer,  and  is  based  on  the  plain 

63  See  Sales  Act,  §  58.  «<  See  Sales  Act.  §  r.9. 

«5  Gibson  V.  Carruthers,  8  Mees.  &  W.  337,  per  Lord  Abinger; 
Blackb.  Sales,  31.5-317.  See,  also,  Wiseman  v.  Vandeimtt,  2  Vern. 
203;   Burghall  v.  Howard,  1  H.  Bl.  3G5,  note. 


324        RIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS.      (Ch.  9 

reason  of  justice  and  equity  that  one  man's  goods  shall  not  be 
applied  to  the  payment  of  another  man's  debts.^^  It  does  not 
arise  until  the  seller's  lien  is  gone,  for  it  presumes  that  the 
seller  has  parted  with  the  possession  as  well  as  the  property  in 
goods.  It  is  often  said  to  be  a  mere  extension  of  the  seller's 
lien;''^  and,  as  has  been  shown,®^  it  is  closely  analogous  to 
the  right  of  the  seller  in  actual  possession  to  reassert  his  lien, 
notwithstanding  a  previous  waiver  of  it,  upon  the  insolvency  of 
the  buyer. 

Who  may  Exercise  the  Right. 

On  account  of  its  intrinsic  justice,  the  courts  are  inclined  to 
look  with  favor  on  the  right  of  stoppage  in  transitu,  and  to  ex- 
tend the  right  to  any  one  whose  position  is  substantially  anal- 
ogous to  that  of  an  unpaid  seller.""  The  right  may  be  exer- 
cised by  a  consignor  or  factor  who  has  bought  goods  for  his 
principal  with  his  own  money  or  credit; ''°  by  an  agent  of  the 
seller  to  whom  the  bill  of  lading  has  been  indorsed;  "^  by  tlie 
seller  of  an  interest  in  an  executory  contract; '^^  by  a  surety 
who  has  paid  the  price;  '^^   by  a  principal  consigning  goods  to 


66  D'Aquila  v.  Lambert,  2  Eden,  at  page  77,  1  Amb.  399,  per  Lord 
Northington. 

6T  Rowley  V.  Bigelow,  12  Pick.  (Mass.)  307,  313,  23  Am.  Dec.  G07, 
per  Shaw,  C.  J. 

6  8  Ante,  p.  313. 

69  Benj.  Sales,  §  830.     See  Sales  Act,  §  52  (2). 

If  A.  orders  goods  of  B.,  who  directs  G.  to  ship  them  on  his  ao- 
count  to  A.,  and  C.  does  so,  the  relation  of  seller  and  buyer  not  ex- 
isting between  C.  and  A.,  C.  cannot  stop  in  transitu  upon  the  in- 
solvency of  B.  Memphis  &  L.  R.  Co.  v.  Freed,  3S  Ark.  614.  See, 
also,  Eaton  v.  Cook,  32  Vt.  58;  Neimeyer  Lumber  Co.  v.  Railroad 
Co.,  54  Neb.  321,  74  N.  W.  670,  40  L.  R.  A.  534. 

7  0  Feise  v.  Wray,  3  East,  93;  Tucker  v.  Humphrey,  4  Bing.  516; 
Newhall  v.  Vargas,  13  Me.  93,  29  Am.  Dec.  489;  Seymour  v.  Newton, 
105  Mass.  272,  275;  Muller  v.  Pondir,  55  N.  Y.  323,  14  Am.  Rep.  259; 
Gossler  v.  Schepeler,  5  Daly  (N.  Y.)  476.  Otherwise  where  an  agent 
having  a  lien  for  advances  ships  at  his  principal's  request  to  a 
buyer.  Gwyn  v.  Railroad  Co.,  85  N.  C.  429,  39  Am.  Rep.  708.  See 
Tiffany,  Ag.  p.  475. 

TiMorison  v.  Gray,  2  Bing.  260. 

7  2jenkyns  v.  Usbome,  7  Man.  &  G.  678,  8  Scott,  N.  R.  505. 
7  3  Imperial  Bank  v.  London  &  St.  K.  Docks  Co.,  5  Ch.  Div.  195 
(having  regard  to  the  mercantile  law  amendment  act,  by  which  a 


§§  106-109J)  STOPPAGE   IN   TRANSITU.  325 

liis  factor,  though  the  factor  has  made  advances  or  has  a  joint 
interest  with  the  consignor.''* 

It  may  be  exercised  by  an  agent  who  has  power  to  act  in  be- 
half of  the  seller;  ""^  but,  if  the  agent  acts  without  authority,  it 
seems  that  ratification  after  the  buyer  has  demanded  the  goods 
of  the  carrier  is  too  late.'"*  The  right  of  stoppage  is  not  im- 
paired by  partial  payment,''^  or  by  the  recci[)t  of  a  bill  of  ex- 
change or  other  negotiable  instrument  in  conditional  payment, 
even  though  the  seller  may  have  negotiated  the  bill  so  that  it  is 
outstanding,  unmatured,  in  the  hands  of  a  third  person.'" 

Against  IVhom  the  Right  may  be  Exercised. 

The  right  may  be  exercised  only  against  a  buyer  who  is  in- 
solvent. Insolvency  means  general  inability  to  pay  one's  debts 
in  the  usual  course  of  business.'"    The  fact  that  the  buyer  has 

surety  Is  given  the  remedies  of  the  creditor).  In  Siffken  v.  Wray, 
6  East,  371,  It  was  held  that  a  mere  surety  for  the  buyer  had  no 
right  to  stop  in  transitu.     Benj.  Sales,  §  831. 

'*Kinloch  V.  Craig,  3  Term  R.  Ill);  Newsom  v.  Thornton,  6  East, 
17. 

78  Whitehead  v.  Anderson,  9  Mees.  &  W.  518:  Boll  v.  Moss,  5 
Wliart.  (Pa.)  ISO;    Reynolds  v.  Railroad.  43  N.  H.  580. 

TO  Bird  V.  Brown,  4  tixch.  78<i.  Ratification  before  stoppage  is 
sufficient.  Durgy  Cement  &  Umber  Co.  v.  O'Brien,  123  Mass.  12. 
A  power  of  attorney  dispatched  before  the  stoppage,  wiiich  the 
agent  did  not  receive  till  afterwards,  and  of  which  he  was  ignorant, 
was  a  suthcient  ratificati(m.  Ilutchings  v.  Nunes,  1  Moore,  P.  C. 
(N.  S.)  243.    See  Tiffany,  Ag.  p.  77. 

77  False  V.  Wray,  3  East,  93;  Edwards  v.  Brewer,  2  Mces.  &  W. 
375. 

"sBenj.  Sales,  §  835,  citing  Feise  v.  Wray.  3  East,  03;  Patten  v. 
Thompson,  5  Maule  &  S.  3.">0;  Etlwards  v.  Brewer.  2  Moes.  &  W. 
375;  Miles  v.  Gorton,  2  Cromp.  &  M.  .'>04.  See,  also,  Hays  v.  Monille, 
14  Pa.  48;  Moses  v.  Rasin  (C.  C.)  14  Fed.  772,  774;  Diem  v.  Koblitz, 
49  Ohio  St.  41,  29  N.  E.  1124,  34  Am.  SL  Rep.  531.  But  see  Arnold 
V.  Delano,  4  Cush.  (Mass.)  33.  30,  50  Am.  Doc.  754. 

A  seller  who  has  received  notes  In  payment  for  goods  In  the 
hands  of  a  carrier  is  entitled  to  exercise  the  right  of  stoppa^f  In 
transitu  on  tendering  back  the  notes,  even  though  they  have  bei-n 
negotiated,  since  the  rehrni  of  the  notes  unpaid  is  all  the  consignee 
can  retpiire.  Brewer  Lumber  Co.  v.  Railroad  Co.,  179  Mass.  228,  60 
N.  E.  54S,  54  L.  R.  A.  435.  88  Am.  St.  Rep.  375. 

70  P.iddleconibe  v.  Bond,  4  Adol.  &  E.  332;  Durgy  Cement  &  Um- 
ber Co.  V.  O'Brien,  123  Mass.  12,  13;  Benedict  v.  Schaettle,  12  Ohio 
St.  515;  Reynolds  v.  Railroad,  43  N.  II.  580;   Loeb  v.  Peters,  63  Ala. 


326        RIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS.       (Ch.  9 

stopped  payment  has  generally  been  considered  as  a  matter  of 
course  to  be  such  hisolvency  as  to  justify  stoppage  in  trans- 
itu.8° 

If  the  seller  stops  in  transitu  before  the  bu3'er  has  become  in- 
solvent, he  does  so  at  his  peril;  but  if,  on  the  arrival  of  the 
goods  at  their  destination,  the  buyer  is  then  insolvent,  the  pre- 
mature stoppage  will  avail  for  the  protection  of  the  seller.^^ 
The  seller  may  stop  for  insolvency  which  existed  at  the  time  of 
the  sale,  provided  he  did  not  then  know  of  it.^- 

The  right  of  stoppage  is  paramount  to  the  claims  of  all  per- 
sons claiming  under  the  buyer,  except  against  one  who  claims 
the  goods  by  virtue  of  a  transfer  for  value  of  the  bill  of  lad- 
ing ;  ®^  and  it  is  therefore  superior  to  the  rights  of  a  creditor 
of  the  buyer  who  attaches  the  goods  while  in  transit.^*  It  is 
subject,  however,  to  the  lien  of  the  carrier  for  his  charges  on 
the  goods.* ^    The  right  of  stoppage  is  simply  against  the  goods, 

243,  35  Am.  Rep.  17 ;  Secomb  v.  Nutt,  14  B.  Mon.  (Ky.)  324 ;  Cruin- 
mey  v.  Raudenbush,  55  Minn.  420,  56  N.  W.  1113;  Jeft'ris  v.  Railroad 
Co.,  93  Wis.  250,  07  N.  W.  424,  33  L.  R.  A.  351,  57  Am.  St.  Rep.  919. 
But  see  Millard  v.  Webster,  54  Conn.  415,  8  Atl.  470  (the  inability  of 
the  buyer  to  pay  all  his  debts,  if  his  creditors  had  pressed  for  pay- 
ment, does  not  show  insolvency).  Definition  of  insolvency,  see  Sales 
Act,  §  70  (3). 

8  0  Dixon  V.  Yates,  5  Barn.  &  Adol.  313;  Bird  v.  Brown,  4  EJxch. 
786;  O'Brien  v,  Norris,  16  Md.  122,  77  Am.  Dec.  284.  It  is  enough 
if  it  be  shown  that  the  seller  would  have  had  no  prospect  of  re- 
ceiving payment  when  the  debt  should  fall  due.  Bloomiugdale  v. 
Railroad  Co.,  6  Lea  (Tenn.)  616. 

81  The  Constantia,  6  C  Rob.  Adm.  321,  per  Lord  Stowell. 

82  Reynolds  v.  Railroad,  43  N.  H.  580;  Benedict  v.  Schaettle,  12 
Ohio  St.  515;  O'Brien  v.  Norris,  16  Md.  122,  77  Am.  Dec.  2S4; 
Loeb  V.  Peter.s,  63  Ala.  243,  35  Am.  Rep.  17;  Buckley  v.  FurnLsss 
15  Wend.  (N.  Y.)  137;  Kingman  v.  Denison,  84  Mich.  608,  48  N.  W. 
26,  11  L.  R.  A.  347,  22  Am.  St.  Rep.  711.    Contra :    Rogers  v.  Thomas, 

20  Conn.  ~A.  See  Sales  Act,  §  57  ("when  the  buyer  of  the  goods  is 
or  becomes  insolvent.") 

8  3  Post,  p.  333.     See  Sales  Act,  §  62. 

84  Smith  V.  Goss,  1  Camp.  282;  Haj's  v.  Mouille,  14  Pa.  48;  Durgy 
Cement  &  Umber  Co.  v.  O'Brien,  123  Mass.  12;   Calahau  v.  Babcock, 

21  Ohio  St.  2S1.  8  Am.  Rep.  63;  Bayonne  Knife  Co.  v.  Umbenhauer, 
307  Ala.  4W,  18  South.  175,  54  Am.  St.  Rep.  114. 

85  Potts  V.  Railroad  Co.,  131  Mass.  455,  41  Am.  Rep.  247;  Hays 
V.  Mouille.  14  Pa.  48;  Rucker  v.  Donovan,  13  Kan.  251,  19  Am.  Rep. 
84.     But  the  carrier  cannot  assert  a  lien  for  a  general  balance  be- 


§§  106-109i)  STOPPAGE   IN   TRANSITU.  3L'T 

and  hence  does  not  extend  to  insurance  money  due  to  the  buy- 
er for  damage  to  the  goods." 

Meaning  of  "Transit." 

The  right  of  stoppage  in  transitu  does  not  arise  unless  the 
seller  has  transferred  the  property  and  the  right  of  possession 
to  the  buyer,  and  the  actual  possession  to  the  carrier.'^  The 
essential  feature  of  stoppage  in  transitu  is  that  the  goods  shall 
be  at  the  time  in  the  possession  of  a  middleman,  or  of  some  per- 
son intervening  between  the  seller,  who  has  parted  with,  and 
the  buyer,  who  has  not  yet  received,  them.*'  Whether  there  is 
a  transitus  at  all  will  depend,  therefore,  on  whether  there  is  a 
delivery  of  the  goods  by  the  seller  to  an  intermediary  for  the 
purpose  of  transmission  to  the  buyer.  If  the  delivery  is  di- 
rectly to  the  buyer,  or  to  a  servant  or  agent  authorized  to  ac- 
cept delivery,  who  is  to  hold  the  goods  for  him  or  to  deliver 
them  subject  to  his  further  orders,  no  transitus  arises. 

Delivery  on  Buyer's  Ship. 

As  a  rule,  if  the  bu\  or  sends  his  own  servant  for  the  goods, 
delivery  to  him  is  delivery  to  the  master,  and  if  he  sends  his 
own  cart  or  ship,  delivery  into  the  cart  or  on  board  the  ship 
is  prima  facie  delivery  to  the  buyer,® ^  though,  even  where  he 
sends  his  own  ship,  the  seller  may  restrain  the  effect  of  the  de- 
livery by  taking  from  the  captain  a  bill  of  lading  to  his  own 
order,®**  in  which  case,  as  we  have  seen,**^  the  property  does  not 

tweeu  himself  and  the  couslgnee.  Oppenhelm  v.  Russell,  3  Bos. 
&  P.  42;  Pemisylvauia  R.  Co.  v.  Oil  Works,  126  Pa.  485.  17  Atl. 
671.  12  Am.  St.  Rep.  885.  Where  a  creditor  of  the  buyer  attaches 
In  transit,  the  seller,  though  he  may  still  stop  the  goods,  must  pay 
the  freight  money  advanced  by  the  creditor.  Greve  v.  Dunham,  60 
Iowa.  108.  14  N.  W.  130. 

86  Rerndtson  v.  Strang,  3  Ch.  App.  588.  .'91. 

8T  See  Gibson  v.  Can-uthcrs.  8  Mees.  &  W.  321.  a34.  per  Parke.  B. ; 
Rowley  v.  Bigelow,  12  Pick.  (Mass.)  307.  23  Am.  Dec.  007.  ix^r  Shaw. 
C.  J. 

88  Schotsmans  v.  Railway  Co..  2  Ch.  App.  332,  per  Lord  Cairns. 
See,  also,  Johnson  v.  Eveleth.  93  Me.  300.  45  Atl.  35,  48  I..  R.  A.  fiO 
(logs  being  driven  bv  log-drlvlng  company).  See  Sales  Act,  §  58 
(1)  (a). 

80  Van  Castcel  v.  Booker,  2  Exch.  691;  Berndtson  v.  Strang,  I.. 
R.  4  Eq.  481.  at  page  489. 

i*"  Van  Casteel  v.  Bo<jker.  2  Exch.  691 ;  Turner  v.  Trustees.  G  Exch. 
54.'..  20  Law  J.  Exch.  394;    Gossler  v.  Schepeler,  5  Daly  (N.  Y.)  476. 

Bi  Ante.  p.  162. 


328        RIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS.       (Ch.  9 

pass,  and  the  seller  retains,  not  strictly  speaking  the  right  of 
stoppage  in  transitu,  but  the  property.  It  has  been  held,  how- 
ever, in  England  and  in  Pennsylvania,  that  if  by  the  terms  of 
the  bill  of  lading  the  goods  are  deliverable  to  the  buyer  or  his 
assigns,  delivery  on  the  buyer's  own  ship  is  delivery  to  him,  and 
therefore  precludes  any  right  of  stoppage  in  transitu ;  ®^  al- 
though a  distinction  is  made  between  a  ship  owned  by  the  buyer 
and  one  merely  chartered  by  him. 

In  the  case  of  a  chartered  vessel,  it  is  a  question,  depending 
on  the  circumstances  of  the  particular  case,  whether  the  goods 
are  in  the  possession  of  the  master  as  a  carrier,  or  as  agent  of 
the  buyer.^^ 

In  this  country  the  courts  of  several  states  have  refused  to 
recognize  a  different  rule  as  applying  to  a  ship  owned  by  the 
buyer.^*  "The  true  distinction,"  says  Parsons,  C.  J.,  in  an 
early  Massachusetts  case,®°  "is  whether  any  actual  possession 
by  the  consignee  or  his  assigns,  after  the  termination  of  the 
voyage,  be  or  be  not  provided  for  in  the  bill  of  lading.  When 
such  actual  possession,  after  the  termination  of  the  voyage,  is  so 
provided  for,  then  the  right  of  stoppage  in  transitu  remains 
after  the  shipment.  *  *  *  The  same  rule  must  govern  if  the 
consignor  be  such  owner.  If  the  goods  are  delivered  on  board 
his  ship,  to  be  carried  to  him,  an  actual  possession  by  him  after 
the  delivery  is  provided  for  by  the  terms  of  the  instrument ;  but, 
if  the  goods  are  put  on  board  the  ship  to  be  transported  to  a 
foreign  market,  he  has  on  the  shipment  all  the  possession  con- 
templated in  the  bill  of  lading."     The  distinction  here  drawn  is, 


8  2  Schotsmans  v.  Railway  Co.,  2  Ch.  App.  332;  Bolin  v.  Huff- 
nagle,  1  Rawie  (Pa.)  9;   Thompson  v.  Stewart,  7  Phila.  (Pa.)  187. 

8  3  Bohtlingk  v.  Inglis,  3  East,  381;  Berndtson  v.  Strang,  L.  R.  4 
Eq.  481,  3  Ch,  App.  588;  Ex  parte  Rosevear  China  Clay  Co.,  11  Ch. 
Div.  5G0;  Brindley  v.  Slate  Co.  (1S8G)  55  Law  J.  Q.  B.  Div.  68; 
Benj.  Sales,  §  843.  See  Sale  of  Goods  Act,  §  45  (5),  followed  Sales  Act, 
§  58  (3). 

9*  Stubbs  V.  Lund,  7  Mass.  453,  5  Am.  Dec.  63;  Ilsley  v.  Stubbs, 
9  Mass.  65,  6  Am.  Dec.  29;  Newhall  v.  Vargas,  13  Me.  93,  29  Am. 
Dec.  489 ;  Cross  v.  (yDonnell,  44  N.  Y.  661,  666,  4  Am.  Rep.  721,  per 
Earle,  J.  But  see  Sturtevant  v.  Orser,  24  N.  Y.  538,  539,  82  Am.  Dec. 
.321. 

8  5  Stubbs  V.  Lund,  7  Mass.  453,  5  Am.  Dec.  63. 


§§  106-109i)  STOPPAGE  IN   TRANSITU.  329 

in  effect,  between  delivery  to  the  master,  not  as  the  servant  of 
the  buyer,  but  as  an  intcrmccHary  for  the  purpose  of  convcyini; 
the  goods  to  him.  and  delivery  on  board  the  ship  as  the  place 
of  delivery  appointed  by  him.  In  the  one  case  the  seller  may 
stop  in  transitu ;  in  the  other  no  transitus  ever  arises.  This 
distinction  is  reasonable  and  in  accordance  with  that  recofjnized 
in  respect  to  the  termination  of  the  transit,  viz.,  that  delivery 
to  an  agent  to  convey  the  goods  to  the  buyer  docs  not  terminate 
the  transit,  but  that  delivery  to  an  agent  to  hold  the  goods  sub- 
ject to  his  further  orders  does  terminate  it.'"  That  no  tran- 
situs ever  arises  where  the  goods  are  delivered  on  board  the 
ship  as  the  place  of  delivery  appointed  by  the  buyer  has  been 
recognized  on  both  sides  of  the  Atlantic.  Such  is  the  character 
of  the  delivery  where  the  buyer  orders  the  goods  put  on  board 
in  order  that  they  may  be  sent  on  a  mercantile  venture  or  rov- 
ing voyage,^  ^  or  in  order  that  they  may  be  shipped  from  his 
place  of  business,  not  to  be  delivered  to  him  or  to  his  use, 
but  to  a  third  person."* 

Termination  of  Transit — Deliz'cry  to  Buyer. 

"Transit  embraces  not  only  the  carriage  of  the  goods  to  the 
place  where  delivery  is  to  be  made,  but  also  delivery  of  the 
goods  there  according  to  the  terms  of  the  contract  of  convey- 
ance." °®  The  fact  that  the  journey  is  at  an  end,  and  that  the 
carrier  is  holding  the  goods  as  warehouseman,  does  not  show 
that  the  transit  is  ended. ^°°  The  transit  does  not  terminate 
until  the  goods  pass  into  the  actual  or  constructive  possession 
of  the  buyer.^*^     So  long  as  the  buyer  declines  or  fails  to  take 


«« Post,  p.  331. 

07  Fowler  v.  McTaggart.  cited  In  Hodgson  v.  Loy,  7  Term  R.  442; 
Berndtson  v.  Strang.  L.  11.  4  K(i.  4S1,  at  page  480. 

88  Rowley  V.  Bigelow,  12  Tick.  (Mass.)  307,  23  Am.  Dec.  t>07. 
»»  Kemp  V.  Falk,  7  App.  Cas.,  at  page  588,  per  Ivord  Fitzgerald. 

100  Farroll  v.  Railroad  Co.,  102  N.  C.  390,  9  S.  E.  302,  3  L.  R.  A. 
G47,  11  Am.  St.  Rep.  7G0;  Jcftris  v.  Railroad  Co.,  93  Wis.  2."iO.  G7 
N.  W.  424,  33  L.  R.  A.  351.  57  Am.  St.  Rep.  919;  Bre\Yer  Lmiibor  Co. 
V.  Railroad  Co.,  179  Mass.  228,  60  N.  E.  549,  54  L.  R.  A.  435,  88  Am. 
St  Rep.  375. 

101  Whitehead  v.  Anderson.  9  Mees.  &  W.  518;  Crawshay  v. 
Eades,  1  Bara.  &  C.  ISl;  Kitchen  v.  Spear,  30  Vt.  545;  Seymour  v. 
Newton,  105  Mass.  272;   White  v.  Mitchell,  38  Mich.  390;    Greve  v. 


330      EIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS.       (Ch.  9 

delivery  the  transit  continues.^"  What  will  amount  to  a  taking 
of  possession  is  a  question  in  relation  to  which  much  of  the  law 
referred  to  in  connection  with  actual  receipt  under  the  statute 
of  frauds  ^°^  and  delivery  in  performance  of  the  contract  ^'^* 
will  be  found  applicable.  As  in  the  case  of  the  seller's  lien, 
a  mere  delivery  of  a  part  does  not  amount  to  a  delivery  of  the 
whole,  so  as  to  defeat  the  seller's  right  as  to  the  remainder,  un- 
less the  delivery  is  made  under  such  circumstances  as  to  show 
an  agreement  to  give  up  the  whole  of  the  goods. ^°^  The  buyer 
may  anticipate  the  end  of  the  transit,  and  thereby  put  an 
end  to  the  right  of  stoppage,  by  taking  the  goods  into  his  ac- 
tual possession  before  they  reach  their  appointed  destination.^"* 

Same — Delivery  after  Bankruptcy. 

The  bankruptcy  of  the  buyer  not  being  a  rescission  of  the 
contract,  delivery  to  him  after  bankruptcy,  or  to  his  trustee  or 
assignee  in  bankruptcy,  terminates  the  transit. ^"'^  If  the  prop- 
erty has  passed,  and  the  goods  have  come  into  the  possession  of 

Dunham,  60  Iowa,  108,  14  N.  W.  130;  Symns  v.  Scliotteu,  35  Kan. 
310,  10  Pac.  828. 

102  Bolton  V.  Railway  Co.,  L.  R.  1  C.  P.  431;  James  v.  Griffin, 
2  Mees.  &  W.  623;  Jenks  v.  Fulmer,  160  Pa.  527.  28  Atl.  841;  King- 
man  &  Co.  v.  Denison,  84  Micli.  608,  48  N.  W.  26,  11  L.  R.  A.  347, 
22  Am.  St.  Rep.  711;  Mason  v.  Wilson,  43  Ark.  172;  Wheeling  &  L. 
E.  R.  Co.  V.  Koontz,  61  Ohio  St.  551,  56  N.  E.  471,  76  Am.  St  Rep. 
435.    See  Sales  Act,  §  58  (1)  (b). 

10  8  Ante,  p.  93  et  seq. 

104  Ante.  p.  269  et  seq. 

106  Bolton  V.  Railway  Co.,  L.  R.  1  C.  P.,  at  page  440;  Ex  parte 
Cooper,  11  Ch.  Div.  68;  Kemp  v.  Falk,  7  App.  Cas.,  at  page  580, 
per  Lord  Blackburn;  Buckley  v.  Furniss,  17  Wend.  (N.  Y.)  504.  Cf. 
ante,  p.  321.  See.  also,  Johnson  v.  Eveleth,  93  Me.  306,  45  Atl.  35, 
48  L.  R.  A.  50.     See  Sales  Act,  §  58  (4). 

100  Whitehead  v.  Anderson,  9  Mees.  &  W.  518,  5.34;  London  &  N. 
W.  Ry.  Co.  V.  Bartlett,  7  Hurl.  &  N.  400,  31  Law  J.  Exch.  92;  Ste- 
vens V.  Wheeler,  27  Barb.  (N.  Y.)  658;  Mohr  v.  Railroad  Co.,  106 
Mass.  72,  per  Morton,  J.;  Wood  v.  Yeatman,  15  B.  Mon.  (Ky.)  270. 
Of.  Poole  V.  Railway  Co.,  58  Tex.  134.  See  Sales  Act,  §  58  (2)  (a); 
Sale  of  Goods  Act,  §  45  (2). 

107  Ellis  V.  Hunt,  3  Term  R.  467;  Inglis  v.  "Usherwood,  i  East. 
515;  Conyers  v.  Ennis,  2  Mason  (U.  S.)  236,  Fed.  Cas.  No.  3,149; 
Millard  v.  Webster,  .54  Conn.  415,  8  Atl.  470;  McElroy  v.  Seery,  61 
Md.  389,  48  Am.  Rep.  110;  Felix  v.  Brandstetter  Co.  (Iowa)  89  N. 
W.  971 


§§  106-109^)  STOPPAGK    IN    TICANSITD.  831 

the  insolvent  buyer,  he  cannot  afterwards  rescind  the  sale,  and 
thus  give  a  preference  to  the  seller  over  the  general  credit- 
ors.*"* But  before  the  goods  have  come  into  his  possession  he 
may,  with  the  assent  of  the  seller,  rescind  the  sale,  or  else  re- 
fuse to  take  possession,  and  thus  leave  unimpaired  the  right  of 
stoppage  in  transitu,  unless  his  assignee  succeeds  in  getting  pos- 
session before  the  right  is  exercised.^"" 

Same — Delivery  to  Agent. 

Delivery  of  the  goods  at  their  appointed  destination  to  an 
agent  authorized  to  receive  delivery  is  delivery  to  the  buyer. 
and  ends  the  transit.  But  delivery  to  his  agent  before  they 
have  reached  their  destination  does  not  necessarily  end  the 
transit. 

The  goods  may  be  in  transit  although  they  have  left  the  hands 
of  the  person  to  whom  the  seller  intrusted  them  for  transmis- 
sion ;  it  is  immaterial  how  many  agents  they  may  have  passed 
through,  if  they  have  not  reached  their  destination.  The  term 
"transit"  does  not  necessarily  imply  that  the  goods  are  in  mo- 
tion. "If  the  goods  are  deposited  with  one  who  hoUls  them 
merely  as  agent  to  forward,  and  has  custody  as  such,  they  are 
as  much  in  transitu  as  if  they  were  actually  moving."  ^^°  Thus 
goods  may  still  be  in  transitu,  though  lying  in  a  warehouse  to 
which  they  have  been  sent  by  the  seller's  orders.  Goods  sold 
in  Chicago  to  a  merchant  in  Liverpool,  and  lying  in  a  warehouse 
in  New  York  awaiting  shipment  to  Liverpool  in  pursuance  of 

108  Bnrnes  v.  Freeland,  6  Term  R.  80. 

108  AlUin  V.  Biu-wick,  1  Strange,  Km;  Salte  v.  Field.  5  Terra  R. 
211;  Grout  v.  Hill,  4  (iray  (Mass.)  301;  Tufts  v.  Sylvester.  70  Ma 
213,  9  Atl.  357.  1  Am.  St.  Rop.  303;  Ash  v.  Tutuaui,  1  Hill  (N.  Y.) 
302;  Sturtevaut  v.  Orser,  24  N.  Y.  538,  82  Am.  Dec.  321;  Cox  v. 
lUirns,  1  Iowa,  G4;   Mason  v.  Wilson,  43  Ark.  172. 

iioSmitli  V.  Goss.  1  Camp.  282;  Ex  parte  Watson,  5  Ch.  Dlv.  35; 
Ex  parte  Rosevear  China  Clay  Co.,  11  Ch.  Dlv.  500;  Bethell  v. 
Clark,  19  Q.  B.  Div.  553,  allirmed  20  Q.  B.  Div.  015;  Covell  v.  Hitch- 
cock, 23  Wend.  (N.  Y.)  Oil;  Harris  v.  Pratt,  17  N.  Y.  210;  Cabeea 
V.  Campbell.  .30  Pa.  254;  A;?iiirre  v.  Parmclee,  22  Conn.  473;  White 
V.  Mitchell,  38  Mich.  .300;  Blackman  v.  Pierce.  23  Cal.  500;  Wel.er 
V.  Baessler.  3  Colo.  App.  450,  34  Pac.  201;  In  re  Burke  &  Co.  (D.  C.) 
140  Fed.  071;  Frame  v.  Liquor  Co.  (Or.)  85  Pac.  1009;  Id.,  48  Or. 
272,  SO  Pac.  791.     Blackb.  Sales,  353. 


832        EIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS.       (Ch.  9 

the  buyer's  original  order  to  send  them  to  Liverpool,  are  still 
in  transit,  even  though  the  person  in  possession  may  be  the  gen- 
eral agent  of  the  buyer  for  selling  as  well  as  for  forwarding 
the  goods.  But  if  the  goods  are  once  deposited  with  one  who 
holds  them  as  agent  of  the  buyer,  subject  to  his  further  orders, 
they  are  no  longer  in  transit.^^^  In  each  case  the  question  is: 
"Has  the  person  who  has  the  custody  of  the  goods  got  pos- 
session as  an  agent  to  forward  from  the  vendor  to  the  buyer, 
or  as  an  agent  to  hold  for  the  buyer."  ^^^  It  is  often  impossible 
to  reconcile  the  decisions  in  cases  arising  upon  substantially 
similar  facts.  The  difficulty  lies,  not  in  the  statement,  but  in 
the  application,  of  the  principles. 

Same — Attornment  of  Carrier. 

When  the  goods  have  reached  their  appointed  destination, 
the  transitus  may  be  terminated  by  a  constructive  as  well  as 
by  an  actual  delivery  of  possession  to  the  buyer.  Unless  there 
be  a  delivery  of  actual  possession,  something  must  occur  to 
change  the  actual  possession  of  the  carrier  into  the  constructive 
possession  of  the  buyer;  in  other  words,  the  carrier  must  at- 
torn— that  is,  acknowledge  to  the  buyer  that  he  holds  the  goods 
on  his  behalf.^^^  As  in  other  cases,  the  attornment  must  be 
founded  on  mutual  assent.^^*    If  the  carrier  does  not  consent  to 


111  Dixon  V.  Baldwen,  5  East.  175;  Valpy  v.  Gibson,  4  C.  B.  837; 
Ex  parte  Gibbes,  1  Cb.  Div.  101;  Kendal  v.  Marsball,  11  Q.  B.  Div. 
3oG;  Ex  parte  Miles,  15  Q.  B.  Div.  39,  54  Law  J.  Q.  B.  567;  Guil- 
ford V.  Smitb,  30  Vt  49;  Becker  v.  Hallgarten,  86  N.  Y.  167;  Eowley 
V.  Bigelow,  12  Pick.  (Mass.)  307,  313,  23  Am.  Dec.  607;  Biggs  v. 
Barry,  2  Curt.  (U.  S.)  259.  Fed.  Cas.  No.  1,402;  Brooke  Iron  Co.  v. 
O'Brien,  135  Mass.  442,  447. 

If  tbe  carrier  or  otber  bailee  has  attorned  to  the  buyer,  "it  is 
immaterial  that  a  further  destination  for  the  goods  may  have  been 
indicated  by  the  buyer."     Sales  Act,  §  58  (2)  (b). 

112  Blackb.  Sales,  3.53. 

118  See  Sales  Act  §  58  (2)  (b). 

114  James  v.  Griffin.  2  Mees.  &  W.  623;  Ex  parte  Cooper,  11  Ch. 
Div.  68;  Kemp  v.  Falk,  7  App.  Cas.  573,  per  Lord  Blackburn; 
Hall  V.  Dimond,  63  N.  H.  565,  3  Atl.  423;  McFetridge  v.  Piper,  40 
Iowa,  627;  Harding  Paper  Co.  v.  Allen,  65  Wis.  576,  27  N.  W.  329; 
LangstalT  v.  Stix,  G4  Miss.  171,  1  South.  97,  60  Am.  Rep.  49;  Wil- 
liams V.  Hodges,  113  N.  C.  36,  18  S.  E.  S3;   Blackb.  Sales,  364. 


§§  1U6-109J)  STOI'l'AOE    IN    TUANSITO.  83.3 

hold  the  goods  as  bailee  for  the  buyer/ *^  or  if  the  buyer  does 
not  assent  to  his  so  holding  them,"'  there  is  no  attornment. 

The  carrier's  change  of  character  into  that  of  warehouseman 
or  bailee  for  the  buyer  is  not  necessarily  inconsistent  with  his 
maintenance  of  his  carrier's  lien;  "^  but  the  continuance  of  the 
lien,  and  the  fact  that  his  charges  are  unpaid,  is  strong,  though 
not  conclusive,  evidence  that  he  is  still  in  possession  as  car- 
rier."* 

IVrougfid  Refusal  to  Deliver. 

Since  the  buyer  has  the  right  of  possession  subject  only 
to  the  right  of  stoppage  in  transitu,  if  the  buyer  is  solvent  or  the 
seller  has  failed  to  exercise  his  right  of  stoppage  the  buyer's 
right  of  possession  is  not  affected  by  the  refusal  of  the  car- 
rier to  deliver;  and,  if  the  carrier  wrongfully  refuses  pos- 
session, the  right  of  stoppage  is  gone."" 

Hozv  the  Right  may  be  Defeated. 

The  seller  may  stop  in  transit  notwithstanding  that  he  has  de- 
livered to  the  buyer  a  bill  of  lading  by  which  the  goods  are  de- 
liverable to  his  order.  But  if  the  buyer  transfers  the  bill  of 
lading  to  a  bona  fide  purchaser  for  value,  and  in  such  case  only, 
the  right  of  stoppage  is  defeated.^-*'    It  must  be  borne  in  mind, 

115  Whitehead  v.  Anderson,  9  Mees.  &  W.  518;  Coventry  v.  Glad- 
stone, L.  R.  6  Eq.  44. 

110  Ex  parte  Barrow,  6  Ch.  Div.  783;  O'Neil  v.  Garrett,  0  Iowa. 
480. 

117  Allan  V.  Grlpper,  2  Cromp.  &  J.  21S;  Hall  v.  Dlraond.  <].3  N. 
II.  .'505.  3  Atl.  423. 

118  Kemp  V.  Falk.  7  App.  Gas.  573,  per  Lord  Blackburn.  Where 
tho  captain  promised  to  deliver,  when  satisfied  as  to  freight,  it  was 
held  the  transit  was  not  ended.  Whitehead  v.  Anderson,  9  Mees. 
&  W.  518. 

110  Bird  V.  Brown,  4  Exch.  786.    See  Sales  Act.  58  (2)  (e). 

120  Liokbarrow  v.  Mason,  2  Term  R.  63,  1  H.  Bl.  357,  2  H.  BI. 
211.  0  East,  20,  note,  5  Term  R.  6S3.  1  Smith  Load.  Cas.  (Ed.  1R*^7) 
737,  and  notes.  See,  also,  Branan  v.  Railroad  Co.,  108  Ga.  70.  33 
S.  E.  SSC.  75  Am.  St.  Rop,  20;  Delta  Bag  Co.  v.  Kearns,  112  111. 
App.  209;    Benj.  Sales.  §  S02. 

PlaintifT  sold  lumber  to  T.,  and  T.  sold  It  to  defendant,  whereup- 
on plaintiff  shipped  it.  In  Ottawa,  to  defendant,  in  New  York,  on 
bills  of  lading  naming  defendant  as  consignee,  and  sent  the  bills 
to  T.  Held,  that  T.  received  the  bills  for  defendant,  and  no  further 
transfer  of  the  bills  was  necessary   to   enable  defendant,   as   pur- 


334      RIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS.       (Ch.  9 

however,  that  a  bill  of  lading  is  not  like  a  bill  of  exchange,  and 
that  the  transferee  obtains  no  greater  rights  under  the  instru- 
ment than  his  transferror  possessed.  The  bill  of  lading  rep- 
resents the  goods,  and  the  transfer  of  the  instrument  operates 
simply  as  a  delivery  of  the  goods.  Therefore  the  transfer  by 
one  who  has  no  title  to  the  goods  conveys  none  to  the  trans- 
feree, and  a  transfer  of  the  bill  of  lading  by  way  of  pledge  by 
one  who,  like  a  factor,  has  no  authority  to  pledge  confers  no 
greater  rights  than  would  the  pledge  of  the  goods  themselves  by 
an  agent  acting  without  authority.^^^ 

To  entitle  the  transferee  to  hold  the  goods  free  from  the 
right  of  stoppage  in  transitu,  he  must  take  without  notice; 
not,  indeed,  without  notice  that  the  goods  have  not  been  paid 
for,  since  that  would  not  affect  the  buyer's  right  to  sell,  but 
without  notice  of  the  buyer's  insolvency/ ^^  or  of  any  other 
circumstance  which  would  render  the  bill  of  lading  not  fairly 
and  honestly  assignable.^^^ 

It  has  been  held  in  one  case  ^^*  that  a  bona  fide  transferee  of 
the  bill  of  lading  for  value  will  be  protected,  although  the  trans- 
fer was  after  notice  of  stoppage  had  been  given  to  the  carrier. 
The  decision  was  placed  upon  the  ground  that  on  the  assign- 
ment of  the  bill  of  lading  the  legal  title  passes  to  the  bona  fide 
purchaser  for  value,  and  that,  whether  the  assignment  is  after 
or  before  the  notice  of  stoppage  is  given,  the  equities  of  the 

chaser,  to  defeat  plaintiff's  right  of  stoppage  in  transitu  for  the 
insolvency  of  T.  Shepard  &  Morse  Lumber  Co.  v.  Burroughs,  62 
N.  J.  Law.  469,  41  Atl.  695. 

A  bona  fide  purchaser's  title  is  unassailable  as  against  the  sell- 
er, notwithstanding  the  buyer's  fraud.  National  Bank  of  Bristol 
V.  Railroad   Co.,  99  Md.   661,   59   Atl.    134,    105   Am.    St.   Rep.   321. 

121  Lickbarrow  v.  Mason,  1  Smith,  I^ad,  Cas.  (Ed.  1887)  737,  notes. 
In  some  states  bills  of  lading  are  by  statute  made  negotiable,  like 
bills  of  exchange  and  promissoi'y  notes.     Ante,  p.  85. 

122  Vertue  v.  Jewell,  4  Camp.  31,  per  Lord  Ellenborough;  Stanton 
V.  Eager,  16  Pick.  (Mass.)  467,  476;  rx)eb  v.  Peters,  63  Ala.  243,  35 
Am.  Rep.  17;  First  Nat  Bank  v.  Schmidt,  6  Colo.  App.  216,  4© 
Pac.  479. 

123  Cuming  v.  Brown,  9  East,  506;  Salomons  v.  Nissen,  2  Term 
R.  681.  See,  also,  Shepard  &  Morse  Lumber  Co.  v.  Burroughs,  62 
N.  J.  Law,  469,  41  Atl.  695;  Wheeling  &  L.  E.  R,  Co.  v.  Kooutz,  61 
Ohio  St.  551,  56  N,  E.  471,  76  Am.  St.  Rep.  435. 

124  Newhall  v.  Railroad  Co.,  51  Cal.  345,  21  Am.  Rep.  718. 


§§  106-lODi)  STOPPAGE   IN   TRANSITU.  335 

purchaser  are  superior  to  those  of  the  seller,  whose  Hen  not- 
withstanding the  notice  "continues  to  be  only  a  secret  trust  as 
to  a  person  who  *  *  ♦  takes  an  assignment  of  the  bill  of 
lading  'without  notice  of  such  circumstances  as  renders  the 
bill  of  lading  not  fairly  and  honestly  assignable.'"  The  opin- 
ion concludes:  "If  a  person,  taking  an  assignment  of  a  bill  of 
lading,  is  to  encounter  these  risks,  and  can  take  the  assignment 
with  safety  only  after  he  has  inquired  of  the  vendor,  and  of 
every  carrier  through  whose  hands  the  goods  are  to  come, 
whether  a  notice  of  stoppage  in  transition  has  been  given,  it 
is  quite  certain  that  prudent  persons  will  cease  to  advance  mon- 
ey on  such  securities,  and  a  very  important  class  of  commercial 
transactions  will  be  practically  abrogated."  This  case  has  been 
criticised,^ ^'  but  it  has  been  followed  by  the  proposed  Sales 
Act,^^'  which  provides:  "If,  however,  a  negotiable  document 
of  title  has  been  issued  for  goods,  no  seller's  lien  or  right  of 
stoppage  in  transitu  shall  defeat  the  right  of  any  purchaser 
for  value  in  good  faith  to  whom  such  document  has  been  ne- 
gotiated, whether  such  negotiation  be  prior  or  subsequent  to 
the  notification  to  the  carrier  or  other  bailee  who  issued  such 
document,  of  the  seller's  claim  to  a  lien  or  right  of  stoppage  in 
transitu." 

The  transfer  must  be  for  value,  but  an  antecedent  debt  is 
sufficient.^"^    The  purchaser  will,  however,  take  subject  to  the 

i26Burdlck,  Sales  (2(1  Ed.)  251;  Mccbcin,  Sales,  §  ir>G7;  Hutchin- 
son,   Carriers,   §  414. 

128  Section  02.  Cf.  section  59  (2).  Trof.  Willistoii,  In  his  note  to 
section  G2,  says:  "It  seems  clearly  better  to  limit  the  right  of  stoj>- 
page  in  transitu  of  a  seller  who  has  Intrusted  the  buyer  with  a  per- 
fect apparent  title  than  to  deprive  the  Innocent  purchaser  of  the 
goo<ls." 

127  Leask  v.  Scott.  2  Q.  B.  Div.  376,  dissenting  from  Rodger  v. 
Comptoir  d'i:scompte,  L.  R.  2  P.  C.  393;  St.  Paul  Roller-Mill  Co. 
V.  Dispatch  Co.  (C.  C.)  27  Fed.  434;  I>?e  v.  Kimball,  4.5  Me.  172: 
First  Nat.  Bank  v.  Schmidt,  G  Colo.  App.  21G,  40  Pac.  479  (security 
for  antecedent  debt) ;  Shopard  &  Morse  Lumlier  Co.  v.  Rurrouglis. 
r.2  N.  J.  Law,  4G9,  41  Atl.  (!rt5.  Sec,  also.  Clenientson  v.  Railway  Co.. 
42  U.  C.  Q.  B.  203.  But  it  has  been  held  that  a  transfer  of  the  bill 
of  lading,  as  mere  collateral  to  previous  obligations,  does  not  defeat 
the  seller's  right.  Losassier  v.  The  Southwestern,  2  Wood.s  (U.  S.) 
35,  Fed.  Cas.  No.  S.274;  Loeb  v.  Peters.  03  Ala.  243,  35  Am.  Rep.  17. 
See  Sales  Act,  S  7G  (1),  meaning  of  "value." 


336      RIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS.        (Ch.  9 

right  of  stoppage,  unless  he  actually  gets  a  transfer  of  the  bill 
of  lading.^-^ 

The  right  of  stoppage  may  be  defeated  in  part  by  a  transfer 
of  the  bill  of  lading  by  way  of  pledge  or  mortgage.  In  such 
case,  the  buyer  still  retains  the  general  property,  and  the  seller 
may  in  equity  exercise  his  right  of  stoppage  subject  to  the  in- 
cumbrance; and  he  may  also  compel  the  incumbrancer  to  ex- 
haust any  other  securities  he  may  hold  in  satisfaction  of  his 
claim  before  proceeding  on  the  goods  represented  by  the  bill 
of  lading.^2^ 

Whether,  when  the  bill  of  lading  has  been  transferred  by 
the  buyer  to  a  subpurchaser  for  value,  but  the  purchase  money 
is  wholly  or  in  part  unpaid  by  the  subpurchaser,  the  seller  may 
stop  to  the  extent  of  such  unpaid  purchase  money,  is  a  question 
not  free  from  doubt.^^** 

128  Kemp  V.  Falk,  7  App.  Cas.  573,  per  Lord  Blackburn;  Walter  v. 
Ross,  2  Wash.  C.  C.  (U.  S.)  2S3,  Fed.  Cas.  No.  17,122;  Stanton  v. 
Eager,  16  Pick.  (Mass.)  467,  476;    Pattison  v.  Culton,  33  Ind.  240, 

5  Am.  Rep.  199;  Clapp  v.  Sohmer,  55  Iowa,  273,  7  N.  W.  639.  The 
transfer  of  a  "duplicate"  bill  of  lading  does  not  defeat  the  right  of 
stoppage.  Castanola  v.  Railroad  Co.  (D.  C.)  24  Fed.  267.  But  see  note 
to  that  case  by  Adelbert  Hamilton,  citing  Caldwell  v.  Ball,  1  Term  R. 
205;  Meyerstein  v.  Barber,  L.  R.  2  C.  P.  3S,  661,  L.  R.  4  H.  L.  317; 
Glyn  V.  Dock  Co.,  7  App.  Cas.  591,  affirming  6  Q.  B.  Div.  475,  revers- 
ing 5  Q.  B.  Div.  129;  Benj.  Sales,  §  S61.  Cf.  Missouri  Fac.  Ry.  Co. 
V.  Heldenheimer,  82  Tex.  195,  17  S.  W^  608,  27  Am.  St.  Rep.  861. 

129  In  re  Westzinthus,  5  Barn.  &  Adol.  817;    Spalding  v.  Ruding, 

6  Beav.  376,  12  Law  J.  Ch.  503,  affirmed  15  Law  J.  Ch,  374;  Berndt- 
son  V.  Strang,  L.  R,  Bj.  481,  affirmed  3  Ch.  App.  588;  Kemp  v. 
Falk,  7  App.  Cas.  573.  Cf.  Missouri  Pac.  Ry.  Co.  v.  Heidenheimer, 
82  Tex.  195,  199,  17  S.  W.  60S,  27  Am.  St.  Rep.  861.  But  if  the 
goods  come  into  the  hands  of  pledgees  of  the  buyer,  holding  them 
under  his  title  and  setting  up  a  possession  adverse  to  that  of  the 
seller  with  the  buyer's  assent,  at  a  place  where  the  seller  contem- 
plated and  agreed  it  should  be  done,  the  transit  is  at  an  end,  and 
the  principle  of  Spalding  v.  Ruding  does  not  apply.  Brooke  Iron 
Co.  V.  O'Brien,  135  Mass.  442,  447. 

130  The  affirmative  was  substantially  held  in  Ex  parte  Golding,  13 
Ch.  Div.  628,  which  Avas  followed  in  Ex  parte  Falk,  14  Ch.  Div.  446. 
The  latter  case  was  affirmed,  but  on  a  different  ground  (7  App.  Cas. 
573),  where  Lord  Selbourne  doubted  the  rule,  and  said:  "I  assent 
entirely  to  the  proposition  that,  where  the  subpurchasers  get  a  good 
title  as  against  the  right  of  stoppage  in  transitu,  there  can  be  no 
stoppage  in  transitu  as  against  the  purchase  money  payable  by 


g§  106-109i)  STorrAOE  in  transitu.  3.37 

tIcKV  Stoppage  in  Transitu  is  Effected. 

It  has  been  said  that  the  vendor  is  so  much  favored  in  ex- 
ercising his  right  as  to  be  justified  in  getting  the  goods  back 
by  any  means  not  criminal  before  they  reach  the  possession  of 
the  insolvent  vendee.*'^  "The  law  is  clearly  settled,"  says 
Parke,  B.,  "that  the  unpaid  vendor  has  a  right  to  retake  the 
goods  before  they  have  arrived  at  the  destination  originally 
contemplated  by  the  purchaser,  unless  in  the  meantime  they 
have  come  into  the  actual  or  constructive  possession  of  the 
vendee."  "- 

Any  notice  clearly  countermanding  delivery  is  enough.  Such 
notice  may  be  given  to  the  person  in  actual  possession  of  the 
goods  or  to  his  principal  or  employer.^"*  But,  if  tJie  notice  be 
to  a  principal  not  in  actual  possession,  the  notice,  to  be  effectu- 
al, must  be  given  at  such  time  and  under  such  circumstances 
that  the  principal,  in  the  exercise  of  reasonable  diligence,  can 
communicate  with  his  servant  or  agent  in  time  to  prevent  de- 
livery to  the  buyer;  but  if  the  principal  receives  notice  he  is 
bound  to  use  reasonable  diligence  in  forwarding  the  notice  to 
the  proper  agent,  and  if  he  does  so  he  will  be  excused  if  the 
goods  are  delivered  before  the  arrival  of  the  notice."* 

The  seller  exercises  his  right  of  stoppage  at  his  peril.  When 
notice  of  stoppage  is  lawfully  given  to  the  carrier,  the  latter 
must  redeliver  the  goods  according  to  the  directions  of  the 

them  to  their  vendor."     See   Benj.   Sales,  §   Scria;    Chalm.   Sale  of 
Goods  Act  (6th  Ed.)  p.  OS. 

1^1  Siiee  V.  rrescot,  1  Atk.  245,  250,  per  Lord  Hardwicke. 

1  "2  Whitehead  v.  Anderson,  9  Mees.  &  W.  518,  See  Sales  Act,  § 
50  (IK 

133  Litt  V.  Cowley,  7  Taunt.  IGO;  Reynolds  v.  Railroad,  43  N.  H. 
.'JSO;  Newhnll  v.  Varjias.  13  Me.  03.  20  Am.  Dec.  480;  Jones  v.  Earl,  37 
Cal.  C.30.  90  Am.  Dec.  3:58:  Rurker  v.  Donovan,  13  Kan.  252,  10  Am. 
Rep.  84.  The  notice  need  not  state  the  reason.  Allen  v.  Railrojnl 
Co.,  70  Me.  327,  9  Atl.  805,  1  Am.  St  Rep.  310.  The  seller  may  e.xer- 
cise  his  right  by  demanding  the  bills  of  lading  from  the  shipowner 
who  has  retained  them  as  security.  Ex  parte  Watson,  5  Ch.  Div. 
35.  Rut  a  notice  to  hold  the  proct-eds  of  the  goods  Is  Ineffectual. 
Plielps  V.  Comber,  29  Ch.  Div.  813. 

18*  Whitehead  v.  Anderson,  0  Mees.  &  W.  518;    Kemp  v.  Falk,  7 
App.  Cas.  .573,  585,  per  Lord  Blackburn;    >rottram  v.  Iloyor,  5  Denio 
(N.  Y.)  020.     Cf.  Ex  parte  Falk.   14  Ch.   Div.  446,  455,"  per  Bram- 
well,  L.  J.    See  Sales  Act,  §  50  (1). 
TiFF.SAT.rs(2n  En.1— 22 


338      RIGHTS  OF  UNPAID  SELLEE  AGAINST  THE  GOODS.       (Ch.  9 

seller.^^"*  In  case  of  real  doubt,  the  carrier  must  deliver  at  his 
peril  or  resort  to  an  interpleader.^^* 

Effect  of  Stoppage  in  Transitu. 

The  effect  of  exercising  the  right  is  simply  to  restore  the 
goods  into  the  possession  of  the  seller,  so  as  to  enable  him  to 
exercise  his  rights  as  unpaid  seller,  and  not  to  rescind  the  sale. 
He  is  replaced  in  the  position  he  was  in  before  he  parted  with 
the  possession. ^^^ 

135  The  Tigress,  32  Law  J.  P.  M.  &  Adm.  97;  The  E.  H.  Pray 
(D.  C.)  27  Fed.  474;  The  Vidette  (D.  C.)  34  Fed.  396;  Jones  v.  Earl, 
37  Cal.  630,  99  Am.  Dec.  338;    Allen  v.  Railroad  Co.,  79  Me.  327, 

9  Atl.  895,  1  Am.  St.  Rep.  310.  See  Sales  Act,  §  59  (2),  which  adds 
a  proviso  not  in  the  Sale  of  Goods  Act  (section  46):  "If,  however,  a 
negotiable  document  of  title  representing  the  goods  has  been  issued 
by  the  carrier  or  other  bailee,  he  shall  not  be  obliged  to  deliver  or 
justified  in  delivering  the  goods  to  the  seller  unless  such  document  of 
title  is  first  surrendered  for  cancellation."  In  his  note  to  this  sec- 
tion Prof.  Williston  says:  "The  carrier  should  be  liable  to  a  bona 
fide  transferee  of  its  bill  of  lading,  and  vmquestionably  would  be  at 
common  law  if  the  transferee  took  for  value  before  the  stoppage. 
Even  though  the  transferee  took  after  the  notice  of  stoppage,  he  is 
protected  by  section  62.  The  carrier,  therefore,  ought  not  to  be 
obliged  or  allowed  to  surrender  the  goods  unless  the  document  of 
title  is  surrendered." 

136  Glyn  V.  Dock  Co.,  7  App.  Cas.  591,  per  Lord  Blackburn;  The 
Tigress,  32  Law  J.  P.  M.  &  Adm.  97,  102;   Benj.  Sales,  §  861. 

137  Martindale  v.  Smith,  1  Q.  B.  389;    Wentworth  v.  Outhwaite. 

10  Mees.  &  W.  436;  Schotsmans  v.  Railway  Co.,  2  Ch.  App.  332,  340, 
per  Lord  Cairns;  Kemp  v.  Falk,  7  App.  Cas.  573,  581,  per  Lord 
Blackburn;  Babcock  v.  Bonnell,  SO  N.  Y.  244;  Rowley  v.  Bigelow, 
12  Pick.  (INIass.)  307,  312,  23  Am.  Dec.  607;  Newhall  v.  Vargas,  15 
Me.  314,  33  Am.  Dec.  617;  Patten's  Appeal,  45  Pa.  151,  84  Am.  Dec. 
479;  Pennsylvania  R.  Co.  v.  Oil  Works,  126  Pa.  485,  17  Atl.  671, 
12  Am.  St.  Rep.  885;  Diem  v.  Koblitz,  49  Ohio  St.  41,  29  N.  E.  1124, 
34  Am.  St.  Rep.  531;  Bloomingdale  v.  Railroad  Co.,  6  I^a  (Tenn.) 
616;  Rucker  v.  Donovan,  13  Kan.  251,  19  Am.  Rep.  84;  McGill  v. 
Lumber  Co.,  Ill  Tenn.  552,  82  S.  W.  210. 

Where  a  seller  of  grain,  on  learning  that  the  buyer  is  insolvent 
and  intends  to  get  possession  with  intent  to  defraud,  elects  to 
rescind  the  sale  and  stops  the  grain  in  transit,  he  cannot  thereafter 
claim  that  l)y  the  stoppage  he  acquired  a  lien  for  the  price  as  against 
one  to  whom  tlie  bills  of  lading  had  been  transferred  by  the  buyer 
as  collateral.  Kearney  Milling  Sc  li  Co.  v.  Railway  Co.,  97  lOAva, 
719,  66  N.  W.  1059,  59  Am.  St  Rep.  434. 


§  llU)  KKJllT    OF    KKSALK.  830 


RIGHT  OF  RESALE. 

110.  Where  the  buyer  kaa  been  In  tlcfanlt  an  nnreaftonable 
time,  the  unpaid  seller,  who  has  a  right  of  lieu  or  has 
ezereised  his  i-ipiht  of  stoiiiiaKc  in  transitu,  may  re- 
sell the  f;oods,  and,  if  the  Koods  sell  for  less  than  the 
contract  price,  may  recover  from  the  buyer  dauiages 
for  any  loss  occasioned  by  the  breach  of  the  contract 
of   sale. 

In  Enf:;land. 

In  England  the  exact  extent  of  the  rij^ht  of  the  unpaid  seller 
in  possession  of  the  goods  to  resell  them  upon  the  buyer's  de- 
fault has  not  been  free  from  doubt.  The  following  summary 
of  the  points  established  by  the  cases  is  taken  from  a  recent 
work:^^®  "(1)  A  seller  may,  without  express  power  (at  any 
rate  if  he  gives  notice  of  resale),  resell  the  goods  when  the  buy- 
er by  his  words  or  conduct  absolutely  refuses  to  pay  for 
them.^^"  (2)  Simple  nonpunctuality  in  payment  does  not  justi- 
fy a  resale.^*"  (3)  When  the  power  of  resale  is  an  express 
one,  the  seller  resells  as  owner.^*^  (4)  Whether  the  power 
of  resale  be  an  express  one,  or  not,  (a)  the  buyer,  who  has  not 
absolutely  refused  to  pay,  cannot  treat  the  contract  as  rescinded 
by  the  resale  ;^*^  (b)  the  seller  cannot,  after  a  resale,  re- 
cover the  price  of  the  goods,  but  he  may  recover  damages 
for  the  buyer's  breach."  '**  The  subject  is  now  regulated  by 
the  Sale  of  Goods  Act.'** 

In  the  United  States. 

In  this  country  the  right  of  resale  is  universally  recognized 
and  on  the  whole  clearly  defined. 

138  Beni.  Sales  (Htli  Eiig.  Ed.)  949. 

ISO  CitiuK  Mclx'an  v.  Dunn.  4  Bing.  722;  FItt  v.  Cassanet,  12  Law 
J.  C.  P.  70,  4  Man.  &  G.  S98;  Coruwall  v.  Hanson  (1S99)  2  Ch.  10. 
rever.sed  in  C.  A.  (1900)  2  Ch.  298. 

1*0  Citing  Martindale  v.  Suiitli,  1  Q.  B.  389;  Woolfe  v.  llorne.  2 
Q.  B.  Div.  3o5. 

1*1  Citing  I>amond  v.  Davall.  9  Q.  B.  1030. 

1^2  Citing  Pago  V.  Cowasjpo  Kiluljpp.  L.  P.  1  P.  C.  127.  14.'.  140: 
MoTx'an  r.  Dunn,   siiprn. 

1*3  Citing  ehincry  v.  Viall,  5  Iliiil.  &  N.  2i>8;  McLean  T.  Dunn, 
supra. 

1**  Section  48. 


3i0      RIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS.        (Ch.  9 

Where  the  buyer  has  been  in  default  in  the  payment  of  the 
price  an  unreasonable  time,  the  unpaid  seller,  who  has  a  right 
of  lien  or  has  exercised  his  right  of  stoppage  in  transitu,  may 
resell  the  goods,  and,  if  they  sell  for  less  than  the  contract 
price,  may  recover  the  difference,  together  with  the  expenses 
of  the  sale,  in  an  action  against  the  buyer.^*^ 

It  is  usually  said  that  in  making  the  sale  the  seller  acts  as 
the  buyer's  agent,^*^  but  the  expression  is  inaccurate ;  for  the 
seller  does  not  act  as  agent  in  any  proper  sense,  but  for  him- 
self in  the  exercise  of  a  remedy  conferred  by  law.^*^  The  du- 
ties of  the  seller  in  making  the  sale  are,  indeed,  similar  to 
those  of  an  agent  in  selling  for  his  principal.  It  must  appear 
that  the  sale  was  made  within  a  reasonable  time,^*^  and  that 
it  was  fairly  conducted.^ *^    Whether  the  sale  should  be  private 

14  5  Sands  v.  Taylor,  5  Johns.  (N.  Y.)  395,  4  Am.  Dec.  374;  Dustan 
V.  McAndrew,  44  N.  Y.  73;  Sawyer  v.  Dean,  114  N.  Y.  469,  21  N.  B. 
1012;  Whitney  v.  Boardman,  118  Mass.  242;  Fhelps  v.  Hubbard, 
51  Vt.  489;  Atwood  v.  Lucas,  53  Me.  508,  89  Am.  Dec.  713;  Young 
V.  Mertens,  27  Md.  114;  Bell  v.  Offutt,  10  Bush.  (Ivy.)  632;  Bagley 
V.  Findlay,  82  111.  524;  Roebling's  Sons'  Co.  v.  Fence  Go.,  130  111. 
660,  22  N.  E.  518;  Van  Horn  v.  Rucker,  33  Mo.  391,  84  Am.  Rep. 
52;  Diem  v.  Koblitz,  49  Ohio  St.  41,  29  N.  E.  1124,  34  Am.  St.  Rep. 
531.  See  Sales  Act,  §  60  (1).  Upon  default  of  a  purchaser  of  an  un- 
divided interest  in  a  partnership,  the  vendor  may  resell  and  re- 
cover the  deficiency  from  the  first  purchaser.  Van  Brocklen  v. 
Smeallie,  140  N.  Y.  70,  35  N.  E.  415. 

146  See  Sands  v.  Taylor,  supra,  and  cases  in  preceding  note. 

147  Moore  v.  Potter,  155  N.  Y.  481,  50  N.  E.  271,  63  Am.  St.  Rep. 
692.  The  seller  is  entitled  to  any  excess  over  the  contract  price 
realized  on  the  resale.     Bridgford  v.  Crocker,  60  N.   Y.  627. 

148  Smith  V.  Pettee,  70  N.  Y.  13;  Camp  v.  Hamlin,  55  Ga.  259; 
Pickering  v.  Bardwell,  21  Wis.  563.  See  Rosenbaums  v.  Weeden,  IS 
Grat.  (Va.)  785,  98  Am.  Dec.  737.  If  goods  are  perishable,  they  may 
be  sold  forthwith.  T'ustin  Fruit  Ass'n  v.  Fruit  Co.  (Cal.)  53  Pae. 
693. 

149  Van  Brocklen  v.  Smeallie,  140  N.  Y.  70,  75,  35  N.  E.  415; 
Camp  V.  Hamlin,  55  Ga.  259;  Brownlee  v.  Bolton,  44  Mich.  218,  6 
N.  W.  657;  Saladin  v.  Mitchell,  45  111.  79;  Penn  v.  Smith,  98  Ala. 
560,  12  South.  818.  A  sale  elsewhere  than  at  the  place  of  delivery 
is  good,  if  made  in  good  faith,  and  in  the  exercise  of  a  reasonable 
discretion.  Lewis  v.  Greider,  51  N.  Y.  231;  Sawyer  v.  Dean,  114 
N.  Y.  469,  481,  21  N.  E.  1012.  But  see  Chapman  v.  Ingram,  30 
Wis.  290;  Rickey  v.  Tenbroeck,  63  Mo.  563.  The  buyer  cannot  com- 
plain that  the  goods  are  bought  in  the  name  of  a  third  person  for 


§  110)  RIGHT   (IF    KKSALB.  311 

or  by  auction  would  depend  on  what  was  tlic  customary  man- 
ner of  selling-  the  commodity  in  question  and  the  niamicr  most 
likely  to  produce  the  best  price. ^'° 

Whether  notice  of  intention  to  exercise  the  right  of  resale 
should  be  given  is  a  question  on  which  there  is  much  conflict. 
Many  cases  hold  that  notice  should  be  given,  unless,  owing  to 
the  perishable  character  of  the  goods  or  other  circumstances, 
it  may  properly  be  dispensed  with.^*^  Other  cases  hold  that 
no  notice  is  requisite.""  Notice  of  the  time  and  place  of  sale 
is  not  essential."* 

the  seller.  If  the  full  innrkct  price  Is  obtained.  I.indon  v.  Eldrod. 
41>  Wis.  30r..  5  N.  W.  SC-'.  It  seems  that  tlie  seller  shduld  follow 
any  reasonable  instructions  as  to  the  time  and  manner  of  sale  which 
he  can  follow  without  sacriliciug  his  lieu.  Smith  v.  Peltee,  7U  N. 
Y.  13,  IS. 

100  Pollen  V.  Le  Roy,  30  X.  Y.  .")49;  Van  F.rocklen  v.  Snioallie,  140 
N.  Y.  70,  35  N.  E.  415;  Whitney  v.  I'.oardman,  118  Mass.  -242.  248: 
Hayes  v.  Nashville,  SO  Feil.  G41,  20  C.  C.  A.  59.  See  Sales  Act,  § 
<W  (5). 

Where  by  the  contract  the  property  was  not  to  pass  until  the  price 
was  paid,  and  the  buyer  refused  to  complete  the  purchase,  and  the 
seller  sold  at  public  auction,  after  opi)ortunity  to  see  the  goods, 
due  advertisement,  and  notice  to  the  buyer,  the  fact  that  the  seller 
bid  in  the  goods  did  not  render  the  sale  invalid,  and  In  an  action 
against  the  buyer  for  the  deticiency  the  amount  realized  was  lawful 
evidence  of  the  value.  Ackerman  v.  Kubeus,  1G7  N.  Y.  4or»,  tK)  N.  E. 
750,  53  L.  R.  A.  SU7,  82  Am.  St.  Rep.  72S. 

151  Holland  v.  Rea,  4S  Mich.  21S,  224,  12  N.  W.  107;  Rodmond  v. 
Smock.  28  Ind.  305;  Ridgley  v.  Mooney,  10  Ind.  App.  302.  45  N.  E. 
:{48;  Dill  v.  Mumford,  19  Ind.  App.  009,  49  N.  E.  801;  Leonard  v. 
Portier  (Tex.  App.)  15  S.  W.  414;  Winslow  v.  Iron  Co.  (Tenu,  Ch. 
App.)  42  S.  W.  t«tS;  Davis  Sulphur  Ore  Co.  v.  Guano  Co.,  lOlt  Ga. 
0U7,  34  S.  E.  1011. 

i52Wrigley  v.  Cornelius,  102  111.  92,  44  N.  E.  406;  Clore  v.  Rob- 
inson, 100  Ky.  402,  38  S.  W.  G87;   Magnes  v.  Seed  Co.,  14  Colo.  App. 

1"  Pollen  v.  Lo  Roy,  30  N.  Y.  541i;  Holland  v.  Rea.  48  Mich.  218, 
12  N.  W.  107;  nimann  v.  Kent,  00  111.  271;  Pratt  v.  Manufacturing 
Co.,  115  Wis.  048.  92  N.  W.  308.  It  is  not  "essential  that  notice  of 
the  time  and  place  of  sale  should  be  given  to  the  vendee.  Still  as 
the  sale  must  be  fair,  and  such  as  is  most  likely  to  produce  most 
nearly  the  full  and  fair  value  of  the  article,  it  is  always  wisest 
for  the  vendor  to  give  notice  of  his  Intention  to  resell,  and  quite 
unsafe  to  omit  It."  Van  Brooklcn  v.  Smeallle,  140  N.  Y.  70,  75,  35 
N.  E.  415,  per  Finch,  J. 


842      EIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS.        (Ch.  9 

Where  a  resale  is  made,  the  buyer  acquires  a  good  title  as 
against  the  original  buyer,  if  the  seller  had  a  right  to  make 
the  sale  and  the  sale  is  properly  made.^** 


RIGHT  TO  RESCIND. 

111.  By  the  rule  generally  prevailing  in  tliis  country,  Tint  not 
in  England,  Tvhere  the  buyer  has  been  in  default  an 
unreasonable  time,  the  unpaid  seller,  ^vho  has  a  right 
of  lien  or  has  exercised  his  right  of  stoppage  in  trans- 
itu, may  keep  the  goods  as  his  own  and  recover  as 
damages  the  difference  betw^een  the  market  price  at 
the  time  and  place  of  delivery  and  the  contract  price. 

Choice  of  Remedies — Right  to  Rescind. 

It  is  held  in  England  that  the  seller  has  no  right  to  rescind 
the  sale  because  the  buyer  is  in  default  for  the  price/ ^^  his 
choice  of  remedies,  except  for  the  right  of  lien,  being  either  to 
sue  for  the  price  or  to  resell.  In  some  cases  in  this  country,  it 
is  said  that  the  seller  has  a  third  remedy.    The  vendor  of  per- 

219,  59  Pae.  879.  See,  also,  Van  Brocklen  v.  Smeallie,  140  N.  Y. 
70,  35  N.  E.  415.  See  Sales  Act,  §  60  (3).  Prof.  Williston,  in  hie 
note  to  this  section,  says:  "It  seems  undesirable  to  make  a  resale  in- 
valid under  all  circumstances  for  lack  of  notice.  The  lapse  of  time 
or  other  circumstances  might  make  it  highly  unjust  to  allow  the 
buyer  later,  when,  perhaps,  market  prices  had  risen,  to  make  such  a 
claim.  On  the  other  hand,  it  seems  desirable  that  notice  should 
generally  be  given.  The  provision  suggested  will  have  the  effect, 
it  is  hoped,  of  making  notice  necessary,  unless  the  default  of  the 
buyer  is  very  clear  and  long  continued." 

IS*  "In  the  absence  if  an  express  power,  the  lienor  usually  can- 
not transfer  the  title  to  the  property  on  which  the  lien  exists  by 
a  sale  of  it ;  *  *  *  but  he  must  proceed  by  foreclosure.  When 
a  vendor  rightfully  stops  goods  in  transitu,  or  retains  them  before 
transitus  has  begun,  he  can  by  a  sale  *  »  *  vest  a  purchaser 
with  a  good  title.  His  right  is  very  nearly  that  of  a  pledgee  with 
power  to  sell  at  private  sale  in  case  of  default."  Tuthill  v.  Skid- 
more,  124  N.  Y.  148.  153,  26  N.  E.  348.  See  Milgate  v.  Kebble.  3 
Man.  &  G.  100;  Arnold  v.  Carpenter,  16  R.  I.  560,  IS  Atl.  174,  5 
L.  R.  A.  357;  Bowser  v.  Birdsell,  49  Mich.  5,  12  N.  W.  888.  See, 
also.  Sales  Act,  §  60  (2).    Cf.  Sale  of  Goods  Act,  §  48  (2). 

isfi  Martlndalo  v.  Smith.  1  Q.  B.  3S9;  Page  v.  Cowasjee  Eduljee. 
1j.  R.  1  P.  C.  127.  Cf.  Langfort  v.  Tiler,  1  Salk.  113.  See  Sale  of 
Goods  Act,  §  48;  post,  p.  34.'. 


§111)  RIOIIT   TO    RESCIND.  34.'*. 

sonal  property,  says  the  court,  in  the  leading  case  of  Dustan 
V.  McAndrcw,"'  in  a  suit  ag'ainst  the  vendee  for  not  taking  and 
paying  for  the  property,  has  tlic  clioice  ordinarily  of  either  one 
of  three  remedies:  (1)  He  may  store  or  retain  the  property 
for  the  vendee,  and  sue  him  for  the  entire  price;  (2)  he  may 
sell  the  property,  acting  as  the  agent  for  this  purpose  of  the 
vendee,  and  recover  the  difference  hctwccn  the  contract  price 
and  the  price  of  resale ;  or  (3)  he  may  keep  the  property  as 
his  own,  and  recover  the  difference  between  the  market  price 
at  the  time  and  place  of  delivery  ami  the  contract  price.  Sub- 
stantially the  same  statement  of  the  law  has  been  made  in  other 
cases,  although  in  most  of  them  the  exercise  of  the  third  reme- 
dy was  not  involved. ^°^  While  the  first  remedy  is  exercised 
in  affirmance  of  the  contract,  the  third,  since  it  permits  the  sell- 
er to  keep  the  goods  as  his  own  notwithstanding  that  the  prop- 
erty has  passed,  must  rest  on  the  theory  of  rescission,  although 
the  seller  is  inconsistently  allowed  to  maintain  an  action  on  the 
contract  for  the  difference  between  the  market  value  and  the 
price. ^"^  It  is  to  be  said,  however,  that  the  right  of  resale 
seems  also  to  involve  a  rescission.  A  right  to  rescind  is  given 
by  the  proposed  Sales  Act,  which  also  provides  more  fully  than 
has  been  indicated  by  the  cases  how  the  right  may  be  exer- 
cised.^" 

180  44  N.  T.  73. 

15T  iiaydon  v.  Demets.  53  N.  Y.  426;  Mason  v.  Docker,  72  N.  T. 
595.  28  Am.  Rep.  190;  Van  Brocklen  v.  Sineallle.  140  N.  Y.  70,  35 
N.  E.  415;  Moore  v.  Potter,  15.1  N.  Y.  481,  50  N.  E.  271,  G3  Am.  St. 
Rep.  092;  Ackerman  v.  Morris,  107  N.  Y.  40.'),  60  N.  E.  750,  .')3  L.  R.  A. 
8C7,  82  Am.  St.  Rep.  728;  Rarr  v.  Logan,  5  liar.  (Del.)  !i2;  Youn;: 
V.  Mertens,  27  Md.  114,  120;  Cook  v.  Brandeis.  3  Mete.  (Ky.)  555; 
Bagley  v.  Fiudlay,  82  111.  524:  Ames  v.  Moir.  130  111.  582,  22  N.  E. 
535.  See,  also,  Putnam  v.  Glidden,  159  Mass.  47.  34  N.  E.  81,  38 
Am.  St.  Rop.  394.  If  the  goods  rise  in  value  after  the  failure  to 
perform,  the  seller  is  entitled  to  the  benefit.  Brldgford  v.  Crocker, 
00  N.  Y.  C27.  See.  also.  Neis  v.  O'Brien,  12  Wash.  358,  41  Pac.  59. 
50  Am.  St.  Rep.  894. 

168  Cf.  Ganson  v.  Madigan,  15  Wis.  144,  151,  82  Am.  Dec.  659.  See 
Mechem,    Sales.   §§    1081.    1082. 

159  Section  61.  Sec.  also,  section  53.  Prof.  Wllllston  observes, 
in  his  note  to  section  61  of  the  draft,  that  the  remetly  "is  allowed 
In  this  country,  and  seems  fully  justified  by  nifi-c;! utile  custom  and 
convenience." 


344  ACTIONS   FOK   BREACH   OF   THE    CONTKACT.  (Ch.  10 

CHAPTER  X. 

ACTIONS  FOR  BREACH  OF  THE  CONTRACT. 

112.     Remedies  of  Seller — Action  for  Price. 
113-114.  Action  for  Damages  for  Nonacceptance. 

115.  Remedies  of  the  Buyer — Action   for  Failing  to  Deliver 

Goods. 

116.  Specific  Performance. 

117.  Recovery  upon  Failure  of  Consideration. 

118.  Action  for  Converting  or  Detaining  Goods. 

139.  Breacli  of  Warranty — Rights  before  Acceptance. 

120-12L  Rights  after  Acceptance. 

REMEDIES   OF  THE   SELLER— ACTION  FOR  THE  PRICE.i 

112.  (1)  Where,  nnder  a  contract  of  sale,  the  property  in 
the  goods  has  passed  to  the  buyer,  and  he  -nrrongrfully 
neglects  or  refuses  to  pay  for  the  goods  according  to 
the  terms  of  the  contract,  the  seller  may  maintain  an 
action  against  him  for  the  price  of  the  goods. 

(2)  Where,  under  a  contract  of  sale,  the  price  is  payable  on 

a  day  certain,  irrespective  of  delivery  or  transfer  of 
title,  and  the  buyer  wrongfully  neglects  or  refuses  to 
pay  such  price,  the  seller  may  maintain  an  action  for 
the  price,  although  the  property  in  the  goods  has  not 
passed,  and  the  goods  have  not  been  appropriated  to 
the  contract. 

(3)  In  some  jurisdictions  in  this  country,  although  the  prop- 

erty in  the  goods  has  not  passed,  if  the  seller  has  ten- 
dered to  the  buyer  goods  in  accordance  ivith  the  terms 
of  the  contract,  and  the  buyer  has  Tvrongfully  refused 
to  accept  them,  the  seller  may  keep  the  goods  for  the 
buyer  and  may  maintain  an  action  for  the  price.  In 
other  jurisdictions  in  this  country,  this  rule  is  confined 
to  cases  where  the  goods  are  such  that  they  cannot  be 
readily  resold  for  a  reasonable  price.  In  many  other 
jurisdictions  in  this  country,  and  in  England,  in  all 
such  cases  the  seller  must  seek  his  remedy  in  an  ac- 
tion for  damages  for  nonacceptance. 

1  See  Sales  Act,  §  63.    Cf.  Sale  of  Goods  Act,  §  49. 


I 


§  112)  REMEDIES   OF   THE    SELLER.  .'^5 

Where  the  Property  has  Passed. 

When  the  property  in  the  goods  has  passed,  unless  the  sale  is 
on  credit  or  payment  is  made  to  dei)end  on  some  contingency, 
the  seller  may  maintain  an  action  for  the  price.'  He  may  re- 
cover the  price  under  the  common  indehitatus  counts :  When 
the  contract  has  been  completed  in  all  respects  excei)t  delivery, 
and  delivery  is  not  a  condition  precedent  to  the  payment  of  the 
I^rice,  under  the  count  for  goods  bargained  and  sold ;  when  the 
goods  have  been  delivered,  and  the  price  is  payable  at  the  time 
of  action  brought,  under  the  count  for  goods  sold  and  delivered. 
If  the  sale  is  on  credit,  he  must,  of  course,  await  the  termination 
of  the  credit  before  bringing  suit.'  And  if  the  price  is  payable 
by  a  bill  or  other  security,  and  the  security  is  not  given,  the  sell- 
er cannot  sue  for  the  price  until  the  bill  would  have  matured, 
though  he  may  sue  at  once  for  damages  for  breach  of  the  agree- 
ment, in  which  case  the  measure  of  his  damages  will  be  prima 
facie  the  amount  of  the  sum  to  be  secured.* 

Where  the  property  has  passed  and  the  goods  have  been  de- 
livered to  the  buyer,  the  seller  may  not  rescind  for  default  in 
payment  of  the  price,  and  bring  action  for  the  recovery  of  the 
goods." 

2  Scott  V.  Bnpland,  2  Dowl.  &  L.  .">20;  Stoarns  v.  Washburn,  7 
Gray  (Mass.)  187.  189:  Morsp  v.  Sliorman,  lOfi  Mass.  4.^0:  Krazior  v. 
Simmons.  l.'^O  Mass.  531,  oS-j.  2  N.  E.  112;  Mitchell  v.  LcCiair,  Hr, 
>Lnss.  ,3(iS,  43  N.  E.  117;  Ilayden  v.  Demets,  r.3  N.  Y.  42<i:  Doronuis 
V.  Howard,  23  N.  J.  Law,  .100;  Armstrong  v.  Tvirnor,  40  Md.  .'.S9: 
Ganson  v.  Madipan,  13  Wis.  07;  Wood  v.  Michaud.  G3  Minn.  478. 
G.^  N.  W.  003;  Olcoso  v.  Fruit  &  Trading  Co.,  211  111.  539.  71  N.  E. 
1C»S4. 

3  Calcutta  &  B.  Stoam  Nav.  Co.  v.  De  Mattos,  32  Law  .T.  Q.  R. 
(N.  S.)  at  page  328;  Keller  v.  Strasliergor,  00  N.  Y.  370;  Dellono  v. 
Hull.  47  Md.  112.  yiero  insolvency  of  one  of  the  parties  is  not 
equivalent  to  a  rescission  or  a  breach.  It  simply  relieves  the  seller 
from  his  agreement  to  give  credit.  Pardee  v.  Kanady,  lOo  N.  Y.  121, 
120.  2  N.  E.  SSo.  Cf.  New  England  Inm  Co.  v.  Railroad  Co..  01  N. 
Y.  153,  ir,8. 

♦  Paul  V.  Dod.  2  C.  B.  8<X>;  Kinehart  v.  Olwine,  5  Watts  &  S.  (Pa.) 
l."7;  Ilanna  v.  Mills.  21  Wend.  (N.  Y.)  00.  ."U  Am.  Dec.  210;  Rarron 
V.  Muilin.  21  Minn.  374;  Young  v.  Daltou,  83  Tex.  497,  18  S.  W.  819. 
But  see  Foster  v.  Adams.  00  Vt.  302,  15  Atl.  109,  0  Am.  St.  Rep. 
120. 

5  Kramer  v.  Messner,  101  Iowa,  88,  CO  N.  W.  1142;  Neal  v.  Bog- 
gan.  97  Ala.  Oil,  11  South.  809;  Benj.  Sales,  §  704. 


346  ACTIONS    FOK   BREACH    OF   THE   CONTRACT.  (Ch.  10 

Where  Property  Has  not  Passed — Price  Payable  Absolutely. 

If  by  the  terms  of  the  contract  the  price  is  payable  notwith- 
standing that  tlie  property  may  remain  vested  in  the  seller,  the 
seller  may  recover  the  price  at  the  time  agreed  upon,  leaving 
the  buyer  to  his  cross-action  in  case  the  seller,  after  receiving 
the  price,  should  fail  to  deliver  the  goods.'  As  we  have  seen, 
in  a  conditional  sale,  the  price  is  payable  irrespective  of  the 
transfer  of  the  property,  and  the  seller  may  sue  for  the  price 
although  the  property  has  not  passed.'' 

.If,  however,  at  the  time  for  payment  of  the  price,  the  seller 
has  manifested  an  inability  to  perform  or  an  intention  not  to 
perform  the  contract  on  his  part,  it  seems  that  the  buyer  will 
be  excused  from  performing  on  his  part.^ 

Same — JVrongful  Refusal  to  Accept. 

In  England,^  and  in  many  jurisdictions  in  this  country,^**  it 
is  held  that  if  the  property  has  not  passed  the  seller  cannot  un- 
der any  circumstances,  unless  the  price  is  payable  irrespective 
of  the  transfer  of  the  property,  maintain  an  action  for  the  price. 
The  goods  are  still  his.  His  only  remedy,  therefore,  is  an 
action  against  the  buyer  to  recover  damages  for  nonacceptance ; 
that  is,  to  recover  the  difference  between  the  value  of  the  goods, 
which  he  has,  and  the  price,  which  was  to  have  been  his.  In 
many  jurisdictions  in  this  country,  however,  it  is  held  that,  al- 
though the  property  has  not  passed,  if  the  reason  why  it  has  not 


e  Dunlop  v.  Grote,  2  Car.  &  K.  153 ;  White  v.  Solomon.  164  Mass. 
516,  42  N.  E.  104,  30  L.  R.  A.  537.     See  Sales  Act,  §  63  (2). 

7  Ante.  p.  139. 

8  See  Sales  Act,  §  63  (2) :  20  Harv.  Law  Rev.  363,  376,  et  seq. 

9  Atkinson  v.  Bell,  8  Barn.  &  C.  277;  Laird  v.  Pirn,  7  Mees.  &  W. 
474,  478. 

10  Tnfts  V.  Bennett,  163  ISIass.  398.  40  N.  E.  172;  ISIoody  v.  Brown. 
34  Me.  107,  56  Am.  Dec.  640;  Greenleaf  v.  Gallagher,  93  Me.  549,  45 
Atl.  829.  74  Am.  St.  Rep.  371;  Greenleaf  v.  Hamilton,  94  Me.  118, 
46  Atl.  798:  Jones  v.  Jenninjrs  Bros.  &  Co.,  168  Pa.  493.  32  Atl.  51; 
Puritan  Coke  Co.  v.  Clark,  204  Pa.  556,  54  Atl.  350;  Funke  v.  Allen, 
54  Neb.  407,  74  N.  W.  832,  69  Am.  St.  Rep.  716;  Backes  v.  Black, 
5  Neb.  (Unof.)  74,  97  N.  W.  321;  McCormlck  Harvesting  Mach.  Co. 
V.  Balfany,  78  Minn.  371,  81  N.  W.  10,  79  Am.  St.  Rep.  393;  Sher- 
man Nursery  Co.  v.  Aughenbaugh,  93  Minn.  201,  100  N.  W.  1101; 
John  Deere  Plow  Co.  v.  Gorman,  9  Kan.  App.  675,  .">9  Pac.  177;  Star 
Brewery  Co.  v.  Horst,  120  Fed.  246,  58  C.  C.  A.  362. 


J 


§  llli)  KKMKDIKS   OF   TlIK    .SKLLKU,  ,'U7 

passed  is  that  the  buyer  wrongfully  refused  to  accept  the  goods 
when  tendered,  the  seller  may  maintain  an  action  for  the  price. 
"The  vendor  of  personal  property,"  said  the  court  in  Dustan  v. 
Mc Andrew,"  in  a  passage  already  quoted,  "in  a  suit  against 
the  vendee  for  not  taking  and  paying  for  the  property,  has  the 
choice  ordinarily  of  either  one  of  three  methods  to  indemnify 
himself:  (1)  He  may  store  or  retain  the  property  for  the  ven- 
dee, and  sue  him  for  the  entire  purchase  price;  (2)  he  may 
sell  the  property,  acting  as  the  agent  for  this  purpose  of  the 
vendee,  and  recover  the  dilTorence  between  the  contract  price 
and  the  price  obtained  on  such  resale;  or  (3)  he  may  keep 
the  property  as  his  own,  and  recover  the  difference  between  the 
market  price  at  the  time  and  place  of  delivery,  and  the  crmtract 
price." 

In  other  words,  the  rule  is  here  laid  down  that  the  seller  may 
store  or  retain  the  goods  for  the  buyer  and  sue  him  for  tlie  en- 
tire price,  and,  following  this  statement,  the  rule  has  been  fre- 
quently applied  to  executory  contracts,  where  the  property  has 
rot  passed  because  the  buyer  wrongfully  refused  to  accept  the 
goods.^^  It  has  been  pointed  out  that  "the  remedy  thus  allow- 
ed is  neither  more  nor  less  than  specific  i>erformance  of  the  con- 
tract. In  a  court  of  equity  a  contract  for  the  purchase  of  land 
is  enforced  by  a  decree  ordering  the  defendant  to  pay  the  price 
upon  the  transfer  of  title.  In  the  case  of  a  sale  of  goods  the 
New  York  court,  and  other  courts  following  its  rule,  allow  the 
seller  bv  force  of  his  own  expressed  volition  to  make  the  buyer 

1144  N.  Y.  73;   ante,  p.  34.? 

i2Ackerman  v.  Rubons.  1G7  N.  Y.  40.").  GO  N.  E.  7.">0.  r.3  T>.  R.  A. 
867.  82  Am.  St.  Rep.  728;  Habelor  v.  Rogers.  131  Fed.  43,  4.".  <;.-)  C. 
C.  A.  281;  Ames  v.  Moir.  1.30  111.  r.S2.  501.  22  N.  E.  ^^:v^■.  Osgood  v. 
Sklnnor,  211  111.  220.  71  X.  E.  809;  Rastetter  v.  Reynolds.  160  Ind. 
133.  66  N.  B.  612;  Gaar.  Scott  &  Co.  v.  Fleshman  (Ind.  App.)  77  N. 
E.  744,  78  N.  E.  348;  Darby  v.  Hall,  3  Pennewlll  (Del.)  25,  50  Atl. 
64. 

As  Involving  the  second  remedy  In  the  statement  In  Dustan  v. 
McAndrew,  supra,  see  Ackennan  v.  Rubons,  167  N.  Y.  405.  60  N.  El 
7.-(>.  .13  L.  R.  A.  867,  82  Am.  St.  Rep.  72S;  Singer  Mfg.  Co.  v.  Cheney 
(Ky.)  51  S.  W.  813;  Magnes  v.  Seed  Co.,  14  Colo.  App.  210.  ."0  Pae. 
870;  Pratt  v.  Mnnufaoturing  Co..  115  Wis.  618.  92  N.  W.  .3(18;  Amer- 
ican Hide  &  I^atlier  Co.  v.  Chalkley  &  Co..  101  Va.  4.''>S.  44  S.  E.  7W: 
Redhead  Bros.  v.  Investment  Co..  126  Iowa.  410.  102  N.  W.  144. 


348  ACTIONS   FOR    BREACH    OF   THE    CONTRACT.  (Ch.  10 

the  owner  in  spite  of  the  buyer's  dissent,  and  thereupon  to  re- 
cover the  price."  ^^  In  some  jurisdictions  the  application  to  this 
rule  is  confined  to  cases  where  the  goods  are  such  that  they  can- 
not be  readily  sold  for  a  reasonable  price,  as  where  the  subject 
of  sale  is  an  article  of  a  special  kind  to  be  made  to  order,  which 
has  no  general  market  value. ^*  To  this  extent  the  rule  is  adopt- 
ed by  the  proposed  Sales  Act.^° 


SAME— ACTION  FOR  DAMAGES  FOR  NONACCEPTANCE-ie 

113.  "Where  the  buyer  ^trrongfnlly  neglects  or  refuses  to  accept 

and  pay  for  the  goods,  the  seller  may  maintain  an  ac- 
tion against  him  for  damages  for  nonacceptance. 

114.  MEASURE  OF  DAMAGES— (1)    The  measure  of  damages 

is  the  estimated  loss  directly  and  naturally  resulting, 
in  the  ordinary  course  of  events,  from  the  buyer's 
breach  of  contract. 
(2)  "Where  there  is  an  available  market  for  the  goods  in 
question,  the  measure  of  damages  is,  in  the  absence  of 
special  circuni stances  shoxeing  proximate  damage  of  a 
greater  amount,  the  difference  betw^een  the  contract 
price  and  the  market  or  current  price  at  the  time  or 
times  'when  the  goods  ought  to  have  been  accepted,  or, 
if  no  time  •was  fixed  for  acceptance,  then  at  the  time 
of  the  refusal  to   accept. 

When  the  property  in  the  goods  has  not  passed,  as  where  the 
contract  was  to  sell  unascertained  goods  or  goods  not  in  a  de- 
liverable state,  and  the  buyer  wrongfully  neglects  or  refuses  to 
accept  and  pay  for  them,  the  seller  may,  of  course,  maintain  an 

13  "The  Right  of  a  Seller  of  Goods  to  Recover  the  Price,"  20  Harv. 
Law  Rev.  3G3,  3Gf>.  In  this  article  Prof.  Williston  presents  a  con- 
vincing argument  in  favor  of  this  rule,  at  least  as  restricted  in  Sales 
Act,  §  G3  (3). 

14  Kinkead  v.  Lynch  (C.  C.)  1.32  Fed.  692;  Black  River  Lumber  Co. 
V.  Warner,  93  Mo.  374,  6  S.  W.  210;  Gordon  v.  Norris,  49  N.  H. 
376;  Ballentine  v.  Robinson,  46  Pa.  177  fcf.  Puritan  Coke  Co.  v. 
Clark.  204  Pa.  556,  54  Atl.  3.50);  Smith  v.  Wheeler.  7  Or.  40.  33  Am. 
Rep.  698;  McCormick  Harvesting  Mach.  Co.  v.  Markert,  107  Iowa, 
.^0,  78  N.  W.  33. 

15  Section  63  (3). 

16  See  Sales  Act,  §  &4. 


§§  113-114)  KK.MKIUKS    OF    THE    SELLER.  34I> 

action  against  the  buyer  to  reojvcr  damages  for  nonacccpt- 
ance.^^  In  many  jurisdictions,  indeed,  as  we  have  seen,  where 
the  neglect  or  refusal  to  accept  is  wrongful,  this  is  his  only  re:n- 
cdy.>« 

DauMgcs  for  Nonacccptancc. 

The  proper  measure  of  damages  for  nonacccptancc  is  gener- 
ally the  dilTcrence  between  the  contract  price  and  the  market 
jirice  at  the  place  of  delivery  at  the  time  when  the  contract  i> 
broken,  or,  as  it  is  usually  said,  at  the  time  and  place  of  deliv- 
ery, because  the  seller  may  take  the  goods  into  the  market  and 
obtain  the  current  price  for  them.^"  If  there  is  no  market  at 
that  place,  the  damages  must,  of  course,  be  otherwise  ascertain- 
ed ;  for  example,  upon  the  basis  of  the  market  price  at  the  near- 
est available  market,  less  the  cost  of  transportation  to  that  mar- 
ket.^" If  the  goods  have  no  money  value,  the  damages  would 
be  ecpial  to  the  whole  contract  price ;  -*  but,  if  it  is  not  made  to 


JT  l^ird  V.  Pirn,  7  Mees.  &  W.  474,  478;  Collins  v.  Delaporte.  lir. 
Mass.  159,  1G2;  Gordon  v.  Norris,  49  N.  II.  37G;  Danforth  v.  Walker. 
CI  Vt.  239;  Atwooil  v.  Lucas,  53  Mo.  508,  S9  Am.  Doc.  713;  Unin-l 
V.  nondorson,  107  111.  141;  Gnnsoa  v.  Madlgan,  13  Wis.  GS\  Chap- 
man V.  Ingram,  ?,0  Wis.  290,  294;  Peters  v.  Cooper,  95  Mich.  191. 
54  N.  W.  (IIM;    Bonj.  Sales,  §  758. 

18  Ante,  p.  348. 

10  Barrow  v.  Amaud,  8  Q.  R.  59.".  OOS,  per  Tindal,  C.  .T. ;  Unox- 
relled  Fire-Works  Co.  v.  Politos.  130  Pa.  530.  IS  -Vtl.  lO.'S,  17  Am. 
St  Rep.  788;  Tufts  v.  Bennett,  103  Mass.  .398,  40  N.  E.  172;  Hough- 
ton V.  Furbush,  TS5  Mass.  251,  70  N.  E.  49;  Ridgley  v.  M<"ine.v,  !•; 
Ind.  App.  302,  45  N.  E.  348;  T>awrence  Canning  Oo.  v.  Mercantile 
Co.,  5  Kan.  App.  77.  48  Pac.  749;  Funke  v.  Allen.  54  Nob.  407.  74  N. 
W.  8.32,  09  Am.  St.  Rep.  710;  Kollo;rs  v.  Frnhlick,  1.39  Mich.  612. 
102  N.  W.  1057;  Huffuonot  Mills  v.  Goortre  F.  .Tompson  &  Co..  OS 
S.  C.  303.  47  S.  E.  087,  102  Am,  St.  Rep.  073;  Ilassoll  Iron  Works  v. 
Cohen  (Colo.)  85  Pac.  89. 

2"  Chicaco  V.  Greer.  9  Wall.  (TJ.  S.I  720,  19  L.  Ed.  709;  Mcrnrndck 
V.  Hamilton,  23  Grat.  (Va.)  501;  Barry  v.  Cavanaph,  127  Mass.  .".91; 
Yellow  Poplar  Lumber  Co.  v.  Chapman.  74  Fed.  444.  20  C.  C.  A.  503. 
Where  there  was  no  market,  the  proper  measure  of  damages  was  the 
actual  loss  which  the  sellers,  acting  as  reasonable  men  in  the  ordi- 
nary course  of  business,  had  sustained.  Dutikirk  Colliery  Co.  v. 
Lever.  9  Ch.  Div.  20,  25. 

=  1  Allen  V.  Jarvis.  20  Conn.  38.  Cf.  Chicago  v.  Greer,  9  Wall.  (F. 
S.)  720,  19  L.  Bd.  709. 


350  ACTIONS   FOR    BREACH    OF   THE    CONTRACT.  (Ch.  10 

appear  that  the  contract  price  exceeds  the  market  price,  only 
nominal  damages  may  be  recovered.^ ^ 

Under  the  rule  prevailing  in  many  states,  as  we  have  seen,  in 
an  executory  contract  of  sale,  when  the  buyer  wrongfully  re- 
fuses to  accept  the  goods,  the  seller  may  sell  the  goods  and,  aft- 
er crediting  the  net  amount  received,  sue  for  the  balance  of  the 
purchase  price. ^^  In  making  such  a  sale,  the  seller  must  con- 
form to  the  requirements  in  respect  to  diligence,  good  faith,  and 
notice  required  of  him  in  a  resale  where  the  property  has 
passed.**  It  is  usually  said  that  such  a  sale  may  be  resorted 
to  as  an  alternative  means  of  establishing  the  market  price  and 
thus  fixing  the  measure  of  damages. 

Damages  Where  Buyer  Repudiates. 

Where  the  buyer  repudiates  the  contract  before  the  time  fixed 
for  the  seller's  performance,  so  that  the  seller  is  excused  from 
procuring  and  tendering  the  goods,  and  the  seller  elects  to  treat 
the  repudiation  as  a  present  breach,  and  to  sue  at  once,  he  is 
entitled  to  such  damages  as  will  put  him  in  the  same  position  as 
if  he  had  been  permitted  to  complete  the  contract.^ ^  If  the  con- 
tract is  for  the  sale  of  goods  to  be  manufactured,  the  measure 
of  damages  in  such  case  is  the  difference  between  the  cost  of 
manufacturing  and   delivering   the    goods    and   the   contract 

2  2  Foos  V.  Sabin,  84  111.  564;  Tufts  v.  Bennett,  163  Mass.  398,  40 
N.  E.  172. 

23  Ackerman  v.  Rubens.  1C7  N.  Y.  405,  60  N.  E.  750,  53  !>.  R.  A. 
867,  82  Am.  St.  Rep.  728;  Singer  Mfg.  Co.  v.  Cheney  (Ky.)  51  S.  W. 
813;  Magnes  v.  Seed  Co.,  14  Colo.  App.  219,  59  Pac.  879;  Pratt  v. 
Manufacturing  Co.,  115  Wis.  648,  92  N.  W.  368;  American  Hide  & 
Leather  Co.  v.  Chalkley  &  Co.,  101  Va.  458,  44  S.  E.  705;  ante, 
p.  347. 

24  Alden  Speare's  Sons  Co.  v.  Hubinger.  129  Fed.  538.  64  C.  C.  A. 
68;  Nelson  v.  Rail  Co.,  102  Mo.  App.  498,  77  S.  W.  590.  See  cases 
cited  in  preceding  note;  ante,  p.  339. 

2eBoorman  v.  Nash,  9  Barn.  &  0.  145;  Phillpotts  v.  Evans,  5 
Mees.  &  W.  475;  Thompson  v.  Alger,  12  Mete.  (Mass.)  428,  443; 
Schramm  v.  Sugar- Refining  Co.,  14G  Mass.  211,  15  N.  E.  571;  Gordon 
V.  Norris.  49  N.  H.  376;  Girard  v.  Taggart,  5  Serg.  &  R.  (Pa.)  19,  9 
Am.  Dec.  327;  Dana  v.  Fiedler,  12  N.  Y.  40,  62  Am.  Dec.  1.30;  Camp 
V.  Hamlin,  .55  Ga.  2.59;  "Williams  v.  .Tones,  1  P.ush  (KjM  621;  Pitts- 
burgh, C.  &  St.  L.  Ry.  Co.  V.  Hock,  .50  Ind.  303,  19  Am.  Rep.  713; 
Sanborn  v.  Benedict,  78  111.  309;  Kadish  y.  Young,  108  111.  170,  43 
Am.  Rep.  548.    See  ante,  p.  306. 


§§  113-114)  REMEDIES    OF   THE    SELLER.  351 

price.-'  And  in  a  recent  case,  wlicre  a  contract  to  sell  hops  was 
repudiated  by  tlic  buyer  before  the  time  for  delivery  had  ar- 
rived, and  the  seller  sued  for  the  breach,  it  was  held  proper  to 
estimate  damages  on  the  basis  of  the  difference  between  the  con- 
tract price  and  the  price  at  which  it  was  shown  responsible 
parties  would  have  undertaken  to  fulfill  the  contract  on  the  part 
of  the  scller.^^ 

If,  however,  the  seller  elects  not  to  treat  the  buyer's  repudia- 
tion as  a  present  breach,  he  may  not  ojntinue  the  perfomiance 
and  recover  damag-es  based  on  a  full  performance;  that  is,  he 
may  not  increase  his  damages  by  a  useless  performance.** 
Thus  the  proposed  Sales  Act  provides:  "If,  while  labor  or  ex- 
pense of  material  amount  are  necessary  on  the  part  of  the  sei- 
ze Cort  V.  Railway  Co.,  17  Q.  B.  127,  20  Law  J.  Q.  B.  400;  Hinck- 
ley V.  Stool  Co.,  121  U.  S.  2Gt.  7  Sup.  Ct.  875.  30  L.  Ed.  9t;7;  Black 
River  Luiniier  Oo.  v.  WariHT,  03  Mo.  374.  0  S.  W.  210;  Muskegon 
Curtain-Roll  Co.  v.  Mauulacturing  Co.,  1.35  Pa.  132.  19  All.  lOOS; 
IIo.snier  v.  Wilson,  7  Mich.  295,  74  Am.  Doc.  71G;  Haskell  v.  Hunter, 
23  Mich.  305;  Butler  v.  Butler,  77  N.  Y.  472.  33  Am.  Rep.  048;  Todd 
v.  Gamble,  148  N.  Y.  3S2.  42  N.  E.  9S2.  .'".2  L.  R.  A.  225 ;  Lake  Shore  & 
M.  S.  Ry.  Co.  V.  Richards.  152  111.  59.  38  N.  E.  773,  30  L.  R.  A.  33; 
Kingman  &  Co.  v.  Wagon  Co..  170  111.  .54.5.  .52  N.  E.  328;  Chapman 
V.  Railway  Co.,  146  Mo.  481.  48  S.  W.  640;  Iladloy  Dean  Plate  Glass 
Co.  V.  Glass  Co..  143  Fod.  242.  74  C.  C.  A.  4(12. 

If  materials  have  been  purchased,  the  difference  between  their  mar- 
ket value  and  their  cost,  if  the  cost  is  greater,  is  to  be  added.  If 
materials  have  l>oen  purchased,  and  labor  has  been  expended  to- 
wards their  manufacture,  the  difference  between  the  market  value  of 
the  partly  finished  articles  and  the  cost  of  the  materials  and  the  labor 
expended  thereon,  if  the  cost  is  greater.  Is  to  be  added.  Kingman  & 
Co.  V.  Manufacturing  Co.,  92  Fed.  4S0.  34  C.  C.  A.  489;    ante,  p.  300. 

27  Roohm  V.  Horst.  178  U.  S.  1,  20  Sup.  Ct.  780,  44  L.  Ed.  953. 
affirming  91  Fed.  .•^45.  33  C.  C.  A.  550. 

28  Clark  V.  Mar.siglla.  1  Donio  (N.  Y.)  317,  43  Am.  Doc.  G70;  Lord 
V.  Thomas.  64  N.  Y.  107;  Gibbons  v.  Rente,  51  Minn.  499.  53  N.  W. 
7.56.  22  U  R.  A.  SO;  Cnllyor  v.  Moulton.  9  R.  I.  90,  98  Am.  Ih-c  .170; 
Heaver  v.  Lanahan.  74  Md.  493.  22  Atl.  203;  Chicago  Bldg.  &  Mfg.  Co. 
V.  Barry  (Tonn.  Ch.  App.)  52  S.  W.  451;  Peck  &  Co.  v.  Corrugating 
Co.,  96  Mo.  App.  212.  70  S.  W.  1(59.  Contra:  Roebllng  S.ms  Co.  v. 
Fence  Co.,  130  III.  000,  22  N.  E.  518.  Cf.  I^ke  Shore  &  M.  S.  Ry. 
Oo.  V.  Richards,  152  111.  59.  38  N.  E.  773,  39  L.  R.  A.  33. 

The  Rollor  cannot  increase  his  damages  by  unrea.snualdy  lying  by 
and  waiting  on  a  rising  market.  Roth  v.  Taysen  (1806)  1  Com.  Cas. 
C.  A.  306. 


352  ACTIONS   FOR   BREACH    OF   THE    CONTRACT.  (Ch.  lO 

ler  to  enable  him  to  fulfill  his  obligations  under  the  contract  to 
sell  or  the  sale,  the  buyer  repudiates  the  contract  or  the  sale,  or 
notifies  the  seller  to  proceed  no  further  therewith,  the  buyer 
shall  be  liable  to  the  seller  for  no  greater  damages  than  the 
seller  would  have  suffered  if  he  did  nothing  towards  carrying 
out  the  contract  or  the  sale  after  receiving  notice  of  the  buyer's 
repudiat'on  or  countermand."  ^®  This  provision  does  not  re- 
quire the  seller  to  cease  performance  in  every  case,  since  there 
may  be  cases  where  the  damage  caused  by  stopping  performance 
would  be  greater  than  that  caused  by  furnishing  the  necessary 
work,  and  in  such  a  case  the  seller  might  complete  per- 
formance and  recover  damages  based  on  completed  perform- 
ance.^" 


2  9  Section  64  (4).  The  subsection  concludes:  "The  profits  the 
seller  would  have  made  if  the  contract  or  the  sale  had  been  fully 
performed  shall  be  considered  in  estimating  such  damages." 

3  0  This  is  the  language  of  Prof.  Williston  in  his  note  to  this  section. 
Plaintiff,  who  was  maufacturing  out  of  cotton  seed,  by  the  same 

process,  oil,  meal,  cake,  hulls,  and  lint,  all  marketable  products,  sold 
to  defendant,  at  a  fixed  price  per  ton,  all  the  cake  and  meal  to  be 
produced  by  the  mill  during  the  year.  After  receiving  part  of  it,  de- 
fendant gave  notice  that  he  would  not  accept  any  more;  but  plaintiff 
continued  to  manufacture  it,  and  tendered  the  balance,  which  defend- 
ant refused.  Held,  that  the  measure  of  damages  was  the  difference 
between  the  market  value  and  the  contract  price.  Southern  Cotton 
Oil  Co.  V.  Heflin,  99  Fed.  339,  39  C.  C.  A.  546,  Selby,  J.  said: 

"In  applying  rules  as  to  the  measure  of  damages,  the  courts  must 
have  regard  to  the  particular  facts  of  the  case  in  question.  *  *  * 
The  plaintiff  was  not  making  one  product  only.  It  was  making  sev- 
eral, obtained  from  the  same  perishable  raw  material.  All  were 
made  for  sale.  The  meal  sold  to  the  defendant  was  not  the  chief 
product.  When  notified  by  the  defendant  that  he  would  not  take 
the  meal,  the  plaintiff  could  not  quit  making  it,  without  stopping  the 
mill  and  abandoning  its  business  of  making  the  other  products.  To 
do  this  the  plaintiff  would  violate  its  other  contracts  as  to  oil,  hulls, 
and  lint.  The  case  is  not  analogous  to  a  contract  to  make  a  soda- 
water  apparatus,  as  in  Tufts  v.  Lawrence,  77  Tex.  526,  4  S.  W.  165, 
where  only  one  chattel  and  two  contracting  parties  are  concerned; 
nor  is  it  strictly  analagous  to  a  contract  to  manufacture  cornshellers, 
as  in  Kingman  &  Co.  v.  Manufacturing  Co.,  34  C.  C.  A.  489,  92  Fed. 
486,  where  only  one  thing  is  being  produced  out  of  the  same  raw 
material.  Cornshellers,  or  agricultural  implements,  cannot  be  said 
to  have  a  well-established  market  value,  like  cotton,  wheat,  or  cot- 
ton seed  meal." 


§  115)  KLMEOIES   OF   THE    BUYER.  853 

Rescission  Where  Buyer  Repudiates, 

If,  before  the  time  fixed  for  the  seller's  performance,  the 
buyer  repudiates  the  contract,  the  seller  may  rescind  the  con- 
tract.^^  And  even  after  partial  performance  by  the  seller,  if  the 
buyer  refuses  to  accept  further  performance,  the  seller  may  re- 
scind the  contract  and  recover  uixjn  a  quantum  meruit  for  the 
goods  already  delivered.^* 


REMEDIES    OF    THE    BUYER-ACTION    FOR    FAILING    TO 
DELIVER  GOODS. 

115.  (1)  Where  the  property  in  the  goods  has  not  passed  to 
the  buyer,  and  the  seller  WTonfjfully  neglects  or  re- 
fuses to  deliver  the  goods,  the  buyer  may  maintain  an 
aetion  against  the  seller  for  damages  for  nondelivery. 

(2)  The  measure  of  damages  is  the  loss  directly  and  natural- 

ly resulting,  in  the  ordinary  course  of  events,  from 
the    seller's   breach    of   contract. 

(3)  Wliere    there    is    an   available    market    for    the    goods    in 

question,  the  measure  of  damages,  in  the  absence  of 
special  circumstances  showing  proximate  damages  of  a 
greater  amount,  is  the  difference  betiveen  the  contract 
price  and  the  market  or  current  price  of  the  goods  at 
the  time  or  times  when  they  ought  to  have  been  de- 
livered, or,  if  no  time  was  fixed,  then  at  the  time  of 
the  refusal  to  deliver. 3 3 

The  breach  of  contract  of  which  the  buyer  complains  may 
arise  from  the  seller's  default  in  delivering  the  goods,  or  from 
some  defect  in  the  goods  delivered.  There  may  be  a  breach  of 
the  principal  contract  for  the  transfer  of  the  property  and  the 
delivery  of  possession  or  a  breach  of  warranty.  The  buyer's 
remedies  for  breach  of  the  contract  may  be  treated  in  the  or- 
der of  time  in  which  they  naturally  arise — First,  his  remedies 
before  obtaining  possession  of  the  goods,  which  may  be  subdi- 

81  KinK  V.  Faist.  IGl  Mass.  449.  37  N.  E.  l.",f;:  Ballou  v.  Rllllnirs. 
13G  Mass.  .307.  See  Sales  Act,  §  or..  providiiij?  for  rescission,  also, 
wliere  the  buyer  mauilests  his  inability  to  porforui.  or  commits  a  ma- 
terial breach. 

32  Wellston  Coal  Co.  v.  Taper  Co.,  T^l  Ohio  St.  182,  48  N.  H.  .888: 
Thompson  v.  GafTey,  52  Nob.  317,  72  N.  W.  314.     See  ante,  p.  300. 

83  Sales  Act,  §  G7.     See,   also,   Sale  of  Goods  .Vet,  §  51. 
Tikf.Sales(2d  Ed.)— 23 


354  ACTIONS   FOR   BREACH    OF   THE   CONTRACT.         •   (Ch.  10 

vided  into  the  cases  where  the  contract  is  executory  and  the 
cases  where  the  property  has  passed ;  and,  second,  his  remedies 
after  having  received  possession  of  the  goods. ^* 

Damages  for  Nondelivery. 

Before  the  property  has  been  transferred  to  the  buyer,  his 
only  remedy  on  the  contract  is  ordinarily  an  action  for  breach 
thereof.  If  he  has  paid  the  price,  and  the  goods  are  not  deliver- 
ed, he  may,  as  will  be  shown,  rescind  the  contract,  and  recover 
what  he  has  paid  in  an  action  for  money  had  or  received.^ ^ 
If  he  has  not  paid  the  price,  his  remedy,  where  the  seller  fails 
to  deliver,  is  to  sue  for  damages  for  breach  of  the  contract. 
His  position  is  the  converse  of  that  of  the  seller  who  is  suing 
the  buyer  for  nonacceptance.  He  has  the  money  in  his  hands, 
and  may  go  into  the  market  and  buy.  The  loss  which  he  sus- 
tains by  the  nondelivery  of  the  goods  is  therefore,  under  ordi- 
nary circumstances,  simply  the  difiference  between  the  contract 
price  and  the  market  price  of  the  goods  at  the  time  and  place 
of  delivery,^®  or,  if  no  time  be  fixed,  at  the  time  of  the  refusal  to 

34Benj.  Sales,  §  869.  ss  Post,  p.  361. 

3  6  Barrow  v.  Arnaud,  8  Q.  B.  604,  at  page  609;  Shaw  v.  Nudd,  8 
Pick.  (Mass.)  9 ;  Dana  v.  Fiedler,  12  N.  Y.  40,  62  Am.  Dec.  130;  Ca- 
hen  V.  Piatt,  69  N.  Y.  348.  25  Am.  Rep.  203;  Fessler  v.  Love,  48  Pa. 
407;  Kribs  v.  Jones,  44  Md.  396;  Miles  v.  Miller,  12  Bush  (Ky.) 
134;  McKercher  v.  Curtis,  3-5  Mich.  478;  Cockbum  v.  Lumber  Co., 
54  Wis.  619,  12  N.  W.  49;  McGrath  v.  Gegner,  77  Md.  331,  26  Atl. 
502,  39  Am.  St.  Rep.  415;  Olson  v.  Sharpless,  53  Minn.  91,  55  N.  W. 
125;  Hewson-Herzog  Supply  Co.  v.  Brick  Co.,  55  Minn.  530,  57  N, 
W.  129 ;  Saxe  v.  Lumber  Co.,  159  N.  Y.  371,  54  N.  E.  14;  O'Gara  v. 
Ellsworth,  85  App.  Dlv.  216,  83  N.  Y.  Supp.  120;  Smith  v.  Lime  Co., 
57  Ohio  St.  518,  49  N.  E.  695;  Potomac  Bottling  Works  v.  Barber  & 
Co.,  103  Md.  509,  63  Atl.  1068.  In  case  of  a  total  failure  to  deliver, 
the  buyer  may  recover  the  amount  with  which  he  could  have  pur- 
chased machines  of  equal  value.  If  those  delivered  were  defective, 
the  measure  of  his  damages  is  the  cost  of  supplying  the  deficiency. 
Marsh  v.  McPherson,  105  U.  S.  709,  26  L.  Etl.  1139.  See,  also,  Still- 
well  &  Bierce  Mfg.  Co.  v.  Phelps,  130  U.  S.  520,  9  Sup.  Ct  601,  32 
L.  Ed.  1035.  When  the  market  value  is  unnaturally  inflated  by  un- 
lawful means,  it  is  not  the  true  test.  Kountz  v.  Kirkpatrick,  72  Pa. 
St.  376,  13  Am.  Rep.  687.  Where  goods  are  purchased  to  be  shipped 
abroad,  and  the  fact  is  known  to  the  seller,  and  it  is  impossible  tor 
the  buyer  to  discover  the  inferioritj-  of  the  goods  till  they  reach 
their  ultimate  destination,  the  measure  of  damages  is  the  difference 
between  the  market  price  of  the  goods  contracted  for  at  the  date 


1 


§11."))  U !•: M  1 ;  1 ) I ES   OF   T 1 1 K    H L  Y  K II.  2o7> 

ckllvcr;'^  and  this  is  ihc  iiK-asurc  of  his  claiiiay;cs.  If  he  has 
prepaid  the  price,  he  may  >till  sue  for  nondelivery,  and  is  enti- 
tled to  recover  the  market  price  of  the  ^oods  without  deduc- 
tion.^" If  there  is  no  dilTcrcnce  between  the  contract  price 
and  the  market  price,  he  is  entitled  only  to  nominal  damaijfcs."' 

Even  if  the  seller  repudiates  the  contract  before  the  date  of 
delivery,  so  that  the  buyer  may  sue  at  once,  the  damages  are  to 
be  assessed  as  of  the  agreed  date  of  delivery,  unless  it  appears 
that  the  buyer  could  have  supplied  himself  in  the  market  on 
such  terms  as  to  mitigate  his  loss.***  It  is  always  the  duty  of 
the  buyer  to  make  all  reasonable  efforts  to  mitigate  his  dam- 
ages.*^ 

If  the  time  of  delivery  is  extended  at  the  seller's  request, 
damages  will  be  assessed  according  to  the  market  price  at  the 
date  to  which  delivery  is  postponed.*' 

of  arrival  and  th<>  price  afterwards  realized  on  a  sale  of  tlie  jjoods, 
with  costs  and  expenses  of  sales.  Camden  Consol.  Oil  Co.  v.  Sdileus, 
r.9  Md.   31,  43  Am.   Hep.  r»37. 

ST  Williams  v.  Ward.  IC.  Md.  220:  United  IJailways  &  Kle.trle  Co. 
V.  II.  Wehr  &  Co..  103  Md.  32:5.  CO  Atl.  47.'.     .'^ee  Sales  Act.  §  G7  (3). 

38  staiHip  V.  Cortazzi,  2  Cromp.  M.  iV:  K.  HI.".;  Smetlinrst  v.  Wool- 
ston.  G  Watts  &  S.  (Pa.)  IOC;  Ilumphreysville  Coiijier  Co.  v.  .Mininp 
Co..  33  Vt.  '.•2;  Winside  State  Bank  v.  Louiid,  .'j2  Neb.  401).  72  N.  W. 
4SG. 

3  0  Valpy  V.  Oakeley.  16  Q.  P..  041  ;  Moses  v.  Hasin  (C.  C.)  14  Fed. 
772;  Fossler  v.  Love,  48  Pa.  407;  Wire  v.  Foster.  02  Iowa.  114.  17  N. 
W.  174;    Merriman  v.  Machine  Co..  9(j  Wis.  COO,  71  N.  W.  10.-.0. 

*o  Uoper  V.  .Johnson.  L.  K.  8  C.  P.  Iti7;  Austrian  &  Co.  v.  Sprinper. 
04  Mich.  34.!.  .'4  N.  W.  .W,  .34  Am.  St.  Rep.  .3r.O:  Aljrer-Fowler  Co.  v. 
Tracy,  OS  Minn.  1124.  107  N.  W.  1124.  Cf.  Frolich  v.  Class  Co.,  144 
-Mich.  27Si.  107  N.  W.  880. 

41  Nickoll  V.  Ashton  (lOTKl)  2  Q.  P.  20S.  3(1.".  (IfMH)  2  K.  P..  120; 
Watson  V.  Kirhy.  112  Ala.  43C,  20  Sonth.  C24;  KelU'y,  Mans  &  Co.  v. 
Carriage  Co..  120  Wis.  84.  !»7  N.  W.  C78,  102  Am.  St.  Hep.  071. 

On  a  contract  to  sell  on  credit,  where  the  seller  refnsed  to  deliver, 
hut  offered  to  deliver  at  a  reduced  rate  for  cash,  the  fact  that  the 
buyer  could  only  buy  from  the  seller  did  not  affect  his  dutj'  to  niln- 

42  Ogle  V.  Earl  Vane,  L.  R.  3  Q.  B.  272;  Hickman  v.  Hnynes,  L. 
R.  10  C.  P.  .^.9S;  Roberts  v.  Benjamin.  124  U.  S.  64.  8  Sup.  Ct.  3!i;'.. 
31  L.  Ed.  334;  Hill  v.  Smith,  .34  Vt.  .">3.';  McDermid  v.  Rediiath.  :«> 
Mich.  372;  P.rown  v.  Sharkey.  93  Iowa,  l."7.  01  N.  W.  301.  See.  also, 
Crescent  Hosiery  Co.  v.  Cotton  -Mills,  140  N.  C.  452.  53  S.  E.  140. 


356  ACTIONS   FOR   BREACH    OF   THE    CONTRACT.  (Ch.  10 

Damages  Where  There  is  no  Market  Price. 

To  the  rule  of  market  price  there  are  some  exceptions,  de- 
pending on  particular  circumstances.  The  goods  may  have 
no  market  price  at  the  place  of  delivery  for  lack  of  a  market, 
in  which  case  the  market  value  may  be  determined  by  ascertain- 
ing the  market  price  in  the  nearest  available  market,  and  add- 
ing the  expense  of  fetching  the  goods  to  the  place  of  deliv- 
ery.*^ 

If  there  is  no  available  market,  and  the  goods  cannot  be  ob- 
tained with  reasonable  diligence,  the  buyer  may  recover  the  loss 
directly  and  naturally  resulting  in  the  ordinary  course  of 
events  from  the  seller's  breach  of  contract.**     Thus,  if  there 


imize  his  loss.  Lawrence  v.  Porter,  63  Fed.  62,  11  C.  O.  A.  27,  26  L. 
R.  A.  167. 

If  the  buyer  has  supphed  himself  from  another  source  at  less  than 
the  market  price,  he  can  recover  only  for  the  difference  between 
the  price  paid  and  the  contract  price.  Theiss  v.  Weiss,  166  Pa.  9, 
31  Atl.  63,  45  Am.  St.  Rep.  638;  Morris  v.  Supplee,  208  Pa.  253,  57 
Atl.  5G6. 

4  3  Grand  Tower  Co.  v.  Phillips,  23  Wall.  (U.  S.)  471,  23  L.  Ed.  71; 
Furlong  v.  Polleys,  30  Me.  491,  1  Am.  Rep.  635;  Oahen  v.  Piatt,  69 
N.  Y.  348,  25  Am.  Rep.  203;  Johnson  v.  Allen,  78  Ala.  387,  56  Am. 
Rep.  34;  South  Gardiner  Lumber  Co.  v.  Bradstreet,  97  Me.  165,  53 
Atl.  1110;  Nottingham  Coal  &  Ice  Co.  v.  Preas,  102  Va.  820,  47  S. 
E.  823;  Marshall  v.  Clark,  78  Conn.  9,  60  Atl.  741,  112  Am.  St.  Rep. 
84;  National  Coal  Tar  Co.  v.  Gaslight  Co.,  189  Mass.  2.34,  70  N,  E. 
625.  Cf.  Vogt  V.  Schienbeck,  122  Wis.  491,  100  N.  W.  820,  67  L.  R. 
R.  756,  106  Am.  St.  Rep.  989. 

44  Parsons  v.  Sutton,  66  N.  Y.  92;  McHose  v.  Fulmer,  73  Pa.  365; 
Culln  V.  Glass  Works,  108  Pa.  220;  Bell  v.  Reynolds,  78  Ala.  511,  56 
Am.  Rep.  52;  Carroll-Porter  Boiler  &  Tank  Go.  v.  Machine  Co.,  5  O. 
C.  A.  190,  55  Fed.  451;  Davis  v.  Furniture  Co.,  41  W.  Ya.  Ill,  24 
S.  E.  630;  Jordan  v.  Patterson,  67  Conn.  473,  35  Atl.  521;  John- 
ston V.  Faxon,  172  Mass.  406,  52  N  E.  539;  Den  Ble\  leer  v.  Gaston, 
97  Mich.  354,  56  N.  AV.  763 :  F.  W.  Kavanaugh  Mfg.  Co.  v.  Rosen, 
132  Mich.  44,  92  N.  W.  788;  Wilmoth  v.  Hamilton,  127  Fed.  48,  61  C. 
C.  A.  584;  Ideal  Wrench  Co.  v.  Machine  Co.,  92  App.  Div.  187,  87 
N.  Y.  Supp.  41,  affirmed  181  N.  Y.  573,  74  N.  B.  1118. 

Where  lumber  dealers  purchase  and  pay  for  lumber  to  be  delivered 
at  a  future  time,  and  then  resell  it,  the  measure  of  damages  for 
breach  of  the  contract  and  failure  to  deliver  is,  in  the  absence  of  a 
market  at  or  near  the  place  of  delivery,  the  amount  paid,  together 
with  the  profits  which  would  have  arisen  from  the  resale.  Trigg  v. 
Clay,  88  Va.  330,  13  S.  E.  434,  29-  Am.  St.  Rep.  723. 


§   115)  REMEDIES   OF   TllK    HI  YKK.  3")? 

is  no  available  market,  tlic  loss  may  be  determined  by  ascer- 
taining the  cost  of  manufactnring  the  goods,  if  tliat  is  the  nat- 
ural and  reasonable  way  to  procure  them,*"  or,  if  the  exact 
description  of  goods  cannot  be  obtained,  by  ascertaining  the 
price  of  the  best  substitute  obtainable,  if  it  is  reasonable  for 
tiic  buyer  to  take  that  course.*" 

Special  Damages. 

As  in  other  classes  of  contracts,  the  (.lainagcs  may  be  spe- 
cial as  well  as  general.  The  measure  of  general  damages  is 
the  loss  directly  and  naturally  resulting  from  the  breach  of 
the  contract,  under  ordinary  circumstances.  The  rule  as  to 
market  price  flows  naturally  from  this  general  principle.  The 
measure  of  special  damages  is  tlic  loss  directly  and  naturally 
resulting  from  the  breach  of  contract  under  the  special  circum- 
stances of  the  case  as  contemplated  by  the  parties.  In  the 
leading  case  of  Hadley  v.  Baxendale,*^  the  rule  as  to  the 
measure  of  damages  in  cases  of  contract  was  laid  down  as 
follows :  "Where  the  parties  have  made  a  contract  which  one 
of  them  has  broken,  the  damages  which  the  other  party  ought 
to  receive  in  respect  of  such  breach  of  contract  should  be 
such  as  may  be  fairly  and  reasonably  considered  either  as  aris- 
ing naturally,  i.  e.  according  to  the  usual  course  of  things, 
from  such  breach  of  contract  itself,  or  such  as  mav  reasonably 
be  supposed  to  have  been  in  contemplation  of  both  parties,  at 
the  time  they  made  the  contract,  as  the  probable  result  of  the 
breach  of  it.  Now,  if  the  special  circumstances  under  which 
the  contract  was  actually  made  were  communicated  by  the 
plaintiffs  to  the  defendants,  and  thus  known  to  both  parties, 
the  damages  resulting  from  the  breach  of  such  a  contract,  which 
they  would  reasonably  contemplate,  would  be  the  amount  of 
injury  which  would  ordinarily  follow  from  a  breach  of  con- 
tract under  these  special  circumstances,  so  known  and  com- 
municated. But.  on  the  other  hand,  if  these  special  circum- 
stances were  wholly  unknown  to  the  party  breaking  the  con- 
tract, he,  at  the  most,  conUl  only  be  supposed  to  have  had  in 

^BPnine  v.  Sliorwood.  21  .Miiin.  22.";  E.  W.  Bliss  Co,  v.  Cau  C<'.. 
131   Foil.  51,  G.-)  C.  C.  A.  289. 

48  Hinde  v.  Liddcll,  L.  R.  10  Q.  B.  265. 
*7  9  Exch.  341,  354,  23  Law  J.  Exch.  179. 


358  ACTIONS   FOR  BREACH   OF   THE   CONTRACT.  (Ch.  10 

contemplation  the  amount  of  injury  which  would  arise  gener- 
ally, and  in  the  great  multitude  of  cases  not  affected  by  any 
special  circumstances,  from  such  a  breach  of  contract."  Sub- 
stantially the  same  statement  of  the  rule  was  made  in  New 
York  in  the  leading  case  of  Griffin  v.  Colver,*^  and  these  prin- 
ciples have  been  repeatedly  affirmed. 

It  will  be  seen  that  the  measure  of  both  general  and  special 
damages  really  depends  on  the  same  principle,  viz. :  That  a 
party  is  charged  with  the  damages  which  a  reasonable  man 
would  contemplate  as  the  probable  result  of  the  breach,  if  he 
directed  his  mind  to  it.  It  has  been  objected  "that,  when  par- 
ties enter  into  a  contract,  they  contemplate  its  performance, 
and  not  its  breach ;  but  the  answer  is  that  the  standard  of  the 
law  is  always  an  objective  one.  The  question  is  always,  not 
-what  the  particular  parties  had  actually  in  contemplation,  but 
what  a  reasonable  man  with  their  knowledge  would  have 
contemplated  as  the  likely  result,  if  he  had  directed  his  attention 
to  it."  ^^  Each  case  involving  special  damages  must  be  deter- 
mined by  its  own  merits.  Special  damages  are  not  recoverable, 
unless  alleged  with  sufficient  particularity  to  enable  the  de- 
fendant to  meet  the  demand.^" 

Communication  of  Special  Circumstances. 

The  seller  cannot  be  charged  with  special  damages,  unless 
he  had  knowledge  of  the  special  circumstances  from  which  the 
special  loss  would  be  likely  to  result ;  ^^  and  while,  if  he  had 
such  knowledge,  he  will  generally  be  charged, ^^  it  is  important 

*8  16  N.  Y.  489,  69  Am.  Dec.  718.  See,  also,  Cassidy  v.  Le  Fevre, 
45  N.  Y.  562. 

49  Chalm.  Sale  of  Goods  Act  (6th  Ed.)  105.     See,  also,  Id.  112. 

50  Smith  V.  Thomas,  2  BIng.  N.  C.  372;  Parsons  v.  Sutton,  66  N. 
Y.  92;    Furlong  v.  Polleys,  30  Me,  491,  1  Am.  Rep.  635. 

51  Cory  V.  Building  Co.,  L.  R.  3  Q.  B.  181,  37  Law  J.  Q.  B.  68: 
British  Columbia  &  V.  I.  Spar,  Lumber  &  Sawmill  Co.  v.  Nettleship, 
L.  R.  3  C.  P.  499,  37  Law  J.  O.  P.  235;  Bartlett  v.  Blanchard,  13 
Gray  (Mass.)  429;  Fessler  v.  Love,  48  Pa.  407;  Billmeyer  v.  Wagner, 
91  Pa.  92;  Paine  v.  Sherwood,  19  Minn.  315  (Gil.  270);  Mihills  Mfg. 
Co.  V.  Day,  50  Iowa,  250 :  Peace  River  Phosi)hate  Co.  v.  Grafllin  (C. 
C.)  58  Fed.  .5,50;  South  Gardiner  Lumber  Co.  v.  Bradstreet,  97  Me. 
165,  53  Atl.  1110. 

52  Smeed  v.  Poord,  1  El.  &  El.  602.  28  Law  .T.  Q.  B.  178  (loss  of 
crop  from   delay   in   furnishing  threshing  machine).     A  seller  who 


S   115)  REMEDIES   OF   TIIK    HU VER.  ^."O 

to  bear  in  mind  that  mere  communication  of  tlic  special  circum- 
stances is  not  enous^h  unless  it  be  given  under  such  circum- 
stances as  reasonably  to  imply  that  it  formed  the  basis  of  the 
agreement, — that  is,  unless  the  circumstances  are  such  that 
it  must  be  supposed  that  a  reasonable  man  wouM  have  had 
them  in  contemplation  as  a  probable  result  of  the  breach  of 
the  contract/^ 

A  seller  is  usually  lx)und  for  such  damages  as  result  to  the 
buyer  from  being  deprived  of  the  ordinary  use  of  a  chattel, 
but  not  for  such  damages  as  result  to  him  from  being  deprived 
of  its  use  for  a  special  or  extraordinary  purpose,  which  was 
not  communicated."*  So  the  buyer  is  not  usually  entitled  to 
damages  arising  from  loss  of  profits  on  a  subsale.  or  from  pen- 
alties or  expenses  incurred  by  him  from  inability  to  execute 
such  subsale;  "^^  but  lie  may  recover  such  damages  if  the  sub- 
sale  and  the  other  special  circumstances  necessary  to  advise 
him  of  the  probable  consequences  of  a  breach  were  communi- 

contracts  to  supply  a  butduT  witli  ice,  knowing  It  is  re<julred  to 
l)r<'serve  meat,  is  liable  if  the  meat  spi)ils  in  consi'iiucnce  of  bis 
failure  to  supply,  and  the  buyer  is  unable  to  supply  himself  els«»- 
wbere.  Ilanuner  v.  Sclioenfehler,  47  Wis.  455,  2  N.  W.  1121).  The 
full  amount  of  damage  to  lettuce  growing  in  n  grei'nhouse,  and  froz- 
en by  reason  of  failure  to  supply  water  for  steam  heating,  is  the 
measure  of  damages  for  such  failure.  Watson  v.  Inhabitants  of 
N(H'dham,  IGl  Mass.  4(>4.  37  X.  E.  204,  24  L.  R.  A.  287.  See.  also, 
Hockersmith  v.  Ilanley.  29  Or.  27,  44  Pac.  407:  Neal  v.  Hardware 
Co.,  122  N.  0.  104,  2!)  S.  E.  9G,  G5  Am.  St.  Rep-  ^";  Blumentlial  v. 
Stable,  98  Iowa.  722,  CS  N.  W.  447;  Kelley.  Mans  &  Co.  v.  Carriage 
Co.,  12()  Wis.  .'^.  117  N.  W.  674,  102  Am.  St.  Rep.  971. 

Bs  British  Columbia  &,  V.  I.  Spar,  Lumber  &  Sawmill  Co.  v.  Net- 
tleship,  cited  in  note  51;  Home  v.  Railway  Co.,  L.  R.  7  C.  P.  r..S3. 
^^\n.  L.  R.  8  O.  P.  i:n,  per  Willes.  J.;  Rooth  v.  Mill  Co.,  00  N.  Y. 
487,  490;  Globe  Refining  Co.  v.  Oil  Co.,  190  U.  S.  54(),  2.*]  Sup.  Ct. 
754.  47  L.  Ed.  1171:  E.  W.  Bliss  Co.  v.  Can  Co.,  131  Fed.  52,  05  C. 
C.  A.  2S0;  Marshall  v.  CTark,  78  Conn.  9,  60  Atl.  741,  112  Am.  St. 
Rep.  84. 

5*  C<iry  V.  Building  Co..  L.  R.  3  Q.  B.  181,  .37  Law  J.  Q.  B.  f.S. 

oBWiliiams  V.  Reynolds,  6  Best  &  S.  495,  34  Tmw  J.  Q.  B.  221: 
Devlin  v.  City  of  New  York.  G3  N.  Y.  8:  Cockburn  v.  Lutiilu-r  C^>.. 
54  Wis.  G19,  027,  12  N.  W.  49.  See,  also.  Fox  v.  Harding,  7  Cush. 
(Mass.^  510;  Cotlin  v.  State,  144  Ind.  .578.  43  N.  E.  r-54,  55  Am.  St. 
Rep.  ISS:  Mottit-West  Drug  Oo.  v.  Byrd,  92  Fe<l.  2.00,  34  C.  0.  A.  851; 
Huggins  V.  Cement  Co.,  121  Ga.  311,  48  S.   R  933. 


3G0  ACTIONS   FOR   BREACH    OF   THE   CONTRACT.  (Ch.  10 

cated  to  the  seller.''®  For  a  full  discussion  of  the  rules  of  dam- 
ages common  to  sales  and  other  classes  of  contracts,  the  reader 
is  referred  to  works  upon  damages. 


SAME— SPECIFIC  PES.FORMANCE. 

116.  'Where  an  action  for  damages  -will  not  afPord  an  adequate 
compensation  for  breacli  of  the  seller's  contract  to  de- 
liver the  goods,  a  court  of  equity  may  enforce  the 
specific  performance  of  the  contract. 

As  a  general  rule,  where  a  party  has  a  plain,  adequate,  and 
complete  remedy  at  law,  equity  will  not  assume  jurisdiction. 
Under  ordinary  circumstances,  the  buyer  can  go  into  the  mar- 
ket and  buy  other  goods  in  place  of  those  which  the  seller 
fails  to  deliver,  and  therefore  an  action  for  damages  affords 
the  buyer  an  adequate  remedy.  In  exceptional  cases,  however, 
where  the  contract  is  to  sell  a  specific  chattel,  where  a  similar 
article  cannot  be  obtained,  equity  will  inter  fere.  ^'^  For  ex- 
ample, specific  performance  has  been  granted  where  the  articles 
purchased  were  of  unusual  beauty,  rarity,  and  distinction,  such 
as  objects  of  virtu  ;^^  where  the  subject  of  sale  was  a  patent 
right,^®  or  a  slave;®"  and  in  a  recent  case  even  where  the 
goods  were  indispensable  to  the  buyer's  business,  and  could 
not  otherwise  be  obtained  in  the  city  where  he  was  engaged  in 
business.®^ 

5  6  Elbinger  Actlen-Gesellschaft  fiir  Fabrication  von  Eisenbahn  jMa- 
terial  v.  Armstrong,  Lr.  R.  9  Q.  B.  473;  Hydraulic  Engineering  Co. 
V.  McHaffie,  4  Q.  B.  Div.  670;  Grebert-Borgnis  v.  Nugent,  15  Q.  B. 
Div.  85;  Messmore  v.  Lead  Co.,  40  N.  Y.  422;  Booth  v.  Mill  Co.,  60 
N.  Y.  487;  Robinson  v.  Hyer,  35  Fla.  544,  17  South.  745;  Jordan  v. 
Patterson,  67  Conn.  473,  35  Atl.  521;  Lilly  v.  Lilly,  Bogardus  &  Co., 
39  Wash.  337,  81  Pac.  852. 

8T  Cuddee  v.  Rutter,  1  White  &  T.  Lead.  Cas.  Eq.  (Am.  Ed.  1876) 
p.  1063,  and  notes.     See  Sales  Act,  §  68. 

58  Falcke  v.  Gray,  4  Drew.  658,  29  Law  J.  Ch.  28. 

6  8  Somerby  v.  Buntin,  118  Mass.  279,  19  Am.  Rep.  459;  Hapgood 
V.  Rosenstock  (C.  C.)  23  Fed.  86.  So  of  a  patented  article.  Adams 
V.  Messinger,  147  Mass.  185,  17  N.  E.  491,  9  Am.  St.  Rep.  679; 
Hull  V.  Pitrat  (C.  C.)  45  Fed.  94. 

6  0  Young  V.   Burton,   1   McMuI.   Bq.    (S.   C.)   255. 

«i  Equitable  Gaslight  Co.  v.  Manufacturing  Co.,  63  Md.  285.     A 


5   117)  REMEDIES   OF   THE    HUYEK.  301 

A  contract  to  sell  shares  of  stock  will  not  be  specifically 
enforced,  if  such  shares  can  be  bought  in  the  market,'^  or  if 
the  award  of  damages  would  be  an  adequate  remedy ;  "  but 
if  the  shares  are  not  obtainable,  and  the  remedy  of  damages 
would  be  inadequate,  equity  will  grant  relief.** 


SAME— RECOVERY  UPON  FAILURE  OF  CONSIDERATION. 

117.  W^Iicre  the  bnyer  has  paid  the  price  and  the  teller  fails 
entirely  to  perform  his  contract,  the  buyer  may  rescind 
the  contract  and  recover  the  money  bo  paid. 

When  the  seller  fails  entirely  to  perform  his  part  of  the  con- 
tract, the  buyer  may  put  an  end  to  it,  and  recover  in  an  action 
for  money  had  and  received  any  part  of  the  price  which  he  ha> 
advanced.*"*  This  is  in  accordance  with  the  general  rule  that 
when  a  party  to  a  contract  has  paid  money,  and  the  other  has 
wholly  failed  to  perform  on  his  part,  or,  as  it  is  ordinarily  put, 
the  consideration  has  failed,  the  former  is  entitled  to  restitu- 
tion.'* 

The  rule  applies  in  favor  of  the  buyer  where  there  is  a  war- 
ranty of  the  title,  and  it  turns  out  that  the  seller  was  without 

contract  to  sell  a  newspaper  businoss.  printing:  plant,  nml  material 
used  in  the  Imslnoss  will  be  speclfually  enforcetl.  lirady  v.  Yost, 
6  Idaho,  273,  i^T*  Vac.  542. 

82  Northern   Trust   Co.   v.   Markell,   Gl    Minn.   271,   <",,';    N.    W.  735. 

«3  Avery  v.  Ryan,  74  Wis.  591,  43  N.  W.  317;  Moulton  v.  .Mann- 
facturingCo.,  81  Minn.  250,  83  N.  W.  1082. 

0*  Manton  v.  Ray.  18  R.  I.  672.  29  Atl.  998,  49  Am.  St.  Rep. 
811;  New  England  Trust  Co.  v.  Abbott.  102  Mass.  148,  38  N.  E. 
432,  27  L.  R.  A.  271;  Williams  v.  Montgomery,  148  N.  Y.  519,  43  N. 
E.  57:  Northern  Cent.  R.  Co.  v.  Walworth,  193  Ta.  207,  44  Atl.  2.5;5, 
74  Am.  St.  Rep.  083. 

05  Giles  V.  I'Mwards,  7  Term  R.  ISl:  Illll  v.  Rewee.  11  Mctc. 
(Mass.)  208,  271;  Miner  v.  Rradley,  22  Tick.  C^Iass.)  457,  45S;  Howe 
Mach.  Co.  V.  Willie,  85  111.  333;  Barr  v.  Lo^'an.  5  Uar.  (Del.)  52; 
Cleveland  v.  Sterrett,  70  Pa.  204;  Nash  v.  Towne.  5  Wall.  (II.  S.) 
0S9,  IS  L.  Ed.  .527:  Tetcrsen  v.  Lumber  Co.,  51  Mich.  SO.  10  N.  W. 
243;  Winn  v.  Morris,  94  Ga.  452.  20  S.  E.  339;  Richter  v.  Stock  Co.. 
129  Cal.  .307,  02  Tac.  39.  P.enj.  Sales,  §  42:1.  Money  paid  for  shares 
In  a  projected  company,  which  is  not  formed,  may  bo  recovered  buck. 
Kempson  v.  Saunders,  4  Ring.  5.    See  Sales  Act,  §  70. 

«8  Clark.  Cent.  (2d  Ed.)  408. 


362  ACTIONS   FOR   BREACH    OF   THE    CONTRACT.         (Ch.  10 

title.'^  So,  if  the  subject  of  sale  be  a  bill  or  note  or  other  se- 
curity, and  it  turns  out  to  be  invalid  because  of  forgery  ®^ 
or  for  other  causes,"  the  instrument  thus  not  being-  what  it 
purports,  or  is  described,'^"  to  be,  but  a  mere  worthless  piece  of 
paper,  the  buyer  may  rescind  the  sale,  and  may  defend  an 
action  for  the  price,  or  may  recover  the  price  if  he  has  paid 
it.  So,  in  the  sale  of  a  patent,  if  the  patent  is  void.''^  But, 
though  the  thing  sold  proves  to  be  worthless,  if  the  buyer  as- 
sumed the  risk  of  its  validity,  and  consequently  obtained  the 
identical  thing  which  he  intended  to  buy,  there  is  no  failure  of 
consideration.''^ 

87  Ante,  p.  245. 

68  Jones  V.  Ryde,  5  Taunt.  488;  Gurney  v.  Womersley,  4  El.  & 
Bl.  133,  24  Law  J.  Q.  B.  46;  Terry  v.  Bissell,  26  Conn.  23;  Aldrich 
V.  Jackson,  5  R.  I.  218;  Merriam  v.  Wolcott,  3  Allen  (Mass.)  258, 
80  Am.  Dec.  60.  See,  also,  Wliitney  v.  Bank,  45  N.  Y.  303;  Bell  v. 
Dagg,  60  N.  Y.  528. 

6  9  Burchfield  v.  Moore,  2  El.  &  Bl.  683  (material  alteration);  Gom- 
pertz  V.  Bartlett,  2  El.  &  Bl.  849,  23  Law  J.  Q.  B.  65  (a  bill  of  ex- 
change purporting  to  be  a  foreign  bill,  which  turned  out  to  be  a 
domestic  bill,  and  invalid  because  unstamped);  Wood  v.  Sheldon, 
42  N.  J.  Law,  421,  36  Am.  Rep.  523  (scrip  illegally  and  fraudulent- 
ly issued);  Paul  v.  City  of  Kenosha.  22  Wis.  2G6,  94  Am.  Dec.  59.8; 
Meyer  v.  Richards,  163  U.  S.  385,  16  Sup.  Ct.  1148,  41  L.  Ed.  199 
(bond  stricken  with  nullity  by  constitutional  provision  adopted 
after  act  authorizing  issue).  Cf.  Littauer  v.  Goldman,  72  N.  Y. 
500,   28  Am.   Rep.   171. 

7  0  See  ^loyer  v.  Richards,  supra,  resting  the  doctrine  of  war- 
ranty or  condition  of  identity  in  a  sale  by  description. 

71  Nash  V.  Lull,  102  Mass.  60,  3  Am.  Rep.  435;  Harlow  v.  Put- 
nam, 124  Mass.  553;  Shepherd  v.  Jenkins,  73  Mo.  510;  Green  v. 
Stuart,  7  P.axt.  (Tenn.)  418;  Herzog  v.  Heyman,  151  N.  Y.  587.  45 
N.  E.  1127,  56  Am.  St.  Rep.  640.  Cf.  Chemical  Electric  Light  & 
Power  Co.  v.  Howard,  148  Mass.  352,  20  N.  E.  92,  2  L.  R.  A.  168; 

72  Lambert  v.  Heath,  15  Mees.  &  W.  487;  Bryant  v.  Pember,  45 
Vt.  487;  Blattenberger  v.  Holman,  103  Pa.  555;  Neidefer  v.  Chas- 
tain,  71  Ind.  363,  .36  Am.  Rep.  198;  Wheat  v.  Cross,  31  Md.  99,  1 
Am.  Rep.  28;   Hunting  v.  Downer,  151  Mass.  275,  23  N.  E.  832. 

On  this  principle  it  has  been  held  that,  where  bonds  are  sold 
which  are  invalid  because  the  corporation  has  not  power  to  issue 
them  or  failed  to  comply  with  the  law  in  their  issuance,  the  pur- 
chaser is  liable  on  his  promise  to  pay.  Otis  v.  Cullum,  92  U.  S.  447, 
23  L.  Ed.  406;  Harvey  v.  Dale,  96  Cal.  160,  31  Pac.  14;  Sutro  v. 
Rhodes,  92  Cal.  117,  28  Pac.  98:    But  see  Hurd  v.  Hall,  12  Wis.  136. 


J 


§  117)  KEMKDIKS    OF     IHK    UL  VKR.  'Si,'.', 

The  Failure  must  be  Total. 

To  authorize  rescission,  if  tlic  contract  be  entire,  the  failure 
of  consideration  must  he  tcjtal.  The  buyer  is  not  obhged,  in- 
deed, to  accept  a  partial  performance,  an<l,  if  such  performance 
only  is  tendered,  he  may  rescind  the  contract,  and  recover 
back  the  price.'"  Out,  if  he  has  accepted  a  partial  performance, 
lie  cannot,  at  least  without  returning  what  he  has  received, 
afterwards  rescind,  but  nuist  sue  for  breach  of  the  contract.^* 
If  he  has  enjoyed  part  of  the  consideration,  there  can  be  no 
rescission.'"*  Nevertheless,  although  the  contract  be  entire,  if 
it  is  for  a  definite  quantity  of  goo<ls  all  of  one  quality  at  a  fixed 
price  per  ton  or  pound,  and  the  seller  delivers  only  a  part  and 
makes  default  in  delivering  the  remainder,  it  is  held  that  the 
buyer  who  has  advanced  the  price  of  the  whole  may  recover 
back  the  price  of  the  part  which  is  deficient.'*  In  this  case 
the  entirety  of  the  contract  is  broken  by  the  concurrent  act  of 
the  parties. ^^     But.  if  the  failure  is  merely  as  to  the  (luality 

(Jlouccster  Isinglass  &  Glue  Co.  v.  Cemout  Co.,  154  Mass.  02,  27  N. 
!•:.  100.J.  12  L.  U.  A.  rjt;;j.  2<;  Am.  St.  llep.  214.  But  where  the 
plaiutiff  Ixtught  the  exclusive  right  to  use  a  patent  iu  a  foreign 
eouuti-y,  being  aware  that  no  such  right  could  legally  be  obtained, 
but  <lesiring  an  ostensible  grant  of  the  right,  witli  the  object  of 
tloating  a  company,  it  was  held  that,  having  obtained  what  he  lu- 
Iciulcd  to  buy,  he  could  not  recover  the  purchase  money  on  the 
gnuuid  that  the  consideration  had  faiieil.  Begbie  v.  Phosphate  Sew- 
age Co.,  L.  R.  10  Q.  B.  41>1,  atiirmed  in  1  Q.  B.  Div.  G70.  And  st>e,  al- 
so, Taylor  v.  Hare,  1  Bos.  &  P.  N.  H.  2(W;  Lawos  v.  Purser,  (J  Kl.  & 
Bl.  930,  20  Law  J.  Q.  B.  2.'.. 

73  Giles  V.  Edwards.  7  Term  K.  ISl.  See  Smith  v.  Lewis,  40  Ind. 
1>S;    Bryant  v.  Thesing,  46  Neb.  244.  04  N.  W.  007;  ante,  p.  2n:!. 

"*  Ilarnor  v.  Groves,  15  C.  B.  0(;9,  24  Law  J.  C.  P.  53;  Minor  v. 
Bradley.  22  Pick.  (Mass.)  457;  Clark  v.  Baker,  5  Mete.  (Mass.)  452: 
Harden  v.   Lang,   110  Ga.  302,  30  S.  E.   IW. 

-5  Taylor  v.  Hare.  1  Bos.  &  P.  N.  R.  200;  Lawes  v.  Purser,  0  El. 
&  Bl.  '.t.'.O,  20  Law  .1.  Q.  li.  25;    BenJ.  Sales.  §  427. 

TO  Devaux  v.  Conolly,  8  C.  B.  O-lO;  Hill  v.  Rewee,  11  Mete.  (Mass.) 
208,  272.  Tliis  is  in  the  nature  of  a  total  failure  of  consideration 
for  part  of  the  price  paid,  not  a  partial  failure  for  the  whole.  BenJ. 
Sales,  §  420.  As  to  what  consiitutes  a  severable  cimtract,  si*e 
Norris  v.  Harris,  15  Cal.  220;  McGrath  v.  rannoii,  .55  Minn.  457. 
57  X.  W.  150:  Pot.«danier  v.  Kruse,  .57  Minn.  10.1.  58  N.  W.  983; 
Rubin  V.  Sturtevant,  SO  Fed.  930.  20  C.  C.  A.  259. 

T7  ^fansfleld  v.  Trigg,  113  Mass.  350.  352.  per  Wells.  J. 


364  ACTIONS   FOR   BREACH    OF   THE    CONTRACT.        (Ch.  10 

of  a  part  of  the  goods,  the  buyer  cannot  rescind  unless  he 
rescinds  as  to  the  whole.''* 


SAME— ACTION  FOR  CONVERTING   OR  DETAINING 
GOODS. 

118.  Wliere  the  property  in  the  goods  lias  passed  to  the  bnyer, 
and  the  seller  -wrongfTilly  neglects  or  refuses  to  deliver 
the  goods,  the  buyer  may  maintain  any  action  allo-wed 
by  laxr  to  the  owner  of  goods  of  similar  kind  ivhen 
-wrongfully  converted  or  ivithheld.^o 

When  the  property  has  passed,  if  the  seller  refuses  to  de- 
liver, the  buyer  has  the  same  right  of  action  for  nondelivery 
as  if  the  property  had  not  passed ;  but  he  has,  in  addition  to  his 
right  of  action  on  the  contract,  the  rights  of  an  owner.  He 
has  not  only  the  property  in  the  goods,  but  the  right  of  posses- 
sion, defeasible  in  the  case  of  his  failure  to  pay  for  the 
goods.®"  If  he  is  not  in  default,  therefore,  he  may,  on  the  re- 
fusal of  the  seller  to  deliver,  maintain  an  action  for  conversion. 
As  a  rule,  the  measure  of  the  buyer's  damages  in  such  an  ac- 
tion, either  against  the  seller  ®^  or  a  third  person,  who  has  dealt 
with  the  goods  under  such  circumstances  as  to  amount  to  a 
conversion,*^  is  the  value  of  the  goods  at  the  time  of  the  con- 
version. But  he  cannot  recover  greater  damages  against  the 
seller  by  suing  in  tort  than  by  suing  on  the  contract ;  and,  if  he 
has  not  paid  for  the  goods,  the  measure  of  his  damages  will 
be  the  difference  between  the  contract  price  and  the  market 
value.** 

78  Harnor  v.  Groves,  15  C.  B.  6G9,  24  Law  J.  C.  P.  53;  Clark  v. 
Baker,  5  Mete.  (Mass.)  452;  Morse  v.  Brackett.  98  Mass.  205; 
Id.,  104  Mass.  494;    Mansfield  v.  Trigg,  113  Mass.  350. 

7  0  Sales   Act,   §   66. 

soBenj.  Sales,  §§  883,  886. 

81  Kennedy  v.  Whitwell,  4  Pick.  (Mass.)  466;  Philbrook  v.  Ea- 
ton, 134  Mass.  308.  As  to  the  measure  of  value  where  property 
converted  is  of  fluctuating  value,  see  Hale,  Damages,  186. 

82  Chinery  v.  Viall,  cited  in  following  note;  France  v.  Gaudet,  L. 
R.  6  Q.  B.  199;  Arkansas  Valley  Land  &  Cattle  Co.  v.  Mann,  130  U. 
S.  69,  9  Sup.  Ct.  458,  32  L.  Ed.  854. 

88  Chinery  v.  Viall,  5  Hurl.  &  N.  288,  29  Law  J.  Exch.  180. 


§  11 'J)  BUEACU    OF    WAUKANTY.  3G5 

In  virtue  of  liis  ownership,  the  buyer  may  also  maintain  an 
action  of  replevin  for  the  recovery  of  possession  of  the  goods, 
but  actions  ft)r  the  recovery  of  possession  are  generally  regu- 
lated by  statute."* 


BREACH    OF   UTARRANTY— RIGHTS   BEFORE   ACCEPT- 
ANCE. 

119.  Where,  under  a  contract  to  sell,  tlie  seller  tenders  goods 
whicli  arc  not  sncli  goods  as  are  described  and  as  'war- 
ranted, expressly  or  by  implication,  the  buyer,  if  he 
has  not  accepted  the  goods,  may  reject  the  goods  aud 
maintain  an  action  against  the  seller  for  breach  of 
the  contract  or  w^arranty,  or  the  buyer  may  rescind  the 
contract  and  rccoTcr  the  price  or  any  part  vphich  he 
has  paid. 

Where  there  is  a  contract  to  sell  goods  by  description,  as 
we  have  seen,  there  is  an  implied  warranty  that  the  goods 
shall  correspond  w-ith  the  description,  and  if  they  do  not  the 
buyer  may  reject  them.®*  And  the  rule  is  the  same  where 
there  is  a  breach  of  the  warranty  which  is  implied  in  a  con- 
tract to  sell  by  sample  that  the  goods  shall  correspond  with  the 
sample  in  quality.®"  For  the  same  re.ison,  in  a  contract  to 
sell,  the  buyer  may  reject  the  goods  if  they  fail  to  conform  to 
the  quality  which  the  seller  warranted  they  should  possess.®^ 
"When  the  subject-matter  of  a  sale  is  not  in  existence  or  is  not 

"*  See  Esson  v.  Tarbol).  0  Cusli.  (M.ips.)  407;  Freolove  v.  Frcplnvo, 
1'2.S  M.iRs.  100;  Gl:iss  v.  lilazor,  91  .Mo.  App.  5G4;  Barber  v.  Harper 
(X.  M.)  SO  Pac.  540. 

85  Ante,  p.  247  et  scq.  The  buyer  is  not  deemed  to  have  aceept- 
ed  until  lie  has  had  a  reasnual)le  (ipportuuity  of  examining  the  goods 
to  ascertain  whetlier  they  conform  to  the  contract.     Ante.  p.  1.".>1. 

8  8  Ante,  p.  202  et  seq. 

87  Street  v.  IMay,  2  P.arn.  &  Adol.  4r)0;  Syevs  v.  .Tonas.  2  F3xoh. 
Ill,  117;  Ileill.utt  v.  Ilickson.  L.  K.  7  C.  T.  4?,S.  451;  Azt-niater  v. 
Cai^ella,  2  L.  I{.  C.  P.  431;  Dalley  v.  Green.  15  Pa.  120;  Donne  v. 
Dunham,  05  111.  512,  79  111.  131;  Co.x  v.  Long.  00  N.  C.  7,  9;  Lewis 
V.  Kountree.  78  N.  C.  323;  Byers  v.  Chapin.  28  Ohio  St.  300;  Bigger 
V.  Bovard,  20  Kan,  204;  Polhemus  v.  Heiman.  45  Cal.  573;  Bryant 
V.  Thesing,  40  Neb.  244,  04  N.  W.  007;  Rul»in  v.  Sturtevant.  80  Fed. 
0;]0,  20  C.  C.  A.  2.")0;  Cincinnati  Punch  &  S.  Co.  r.  Thompson,  72 
Kan.  4.32,  83  Pac.  93S. 


366  ACTIONS   FOR   BREACH    OF   THE    CONTRACT.         (Ch.  10 

ascertained  at  the  time  of  the  contract,  an  understanding  that 
it  shall,  when  existing-  or  ascertained,  possess  certain  qualities 
is  not  a  mere  warranty,  but  a  condition,  the  performance  of 
which  is  precedent  to  any  obligation  upon  the  vendee  under 
the  contract ;  because  the  existence  of  those  qualities,  being  part 
of  the  description  of  the  thing  sold,  became  essential  to  its 
identity,  and  the  vendee  cannot  be  obliged  to  receive  and  pay 
for  a  thing  different  from  that  for  which  he  contracted."  ®®  In 
this  passage  the  seller's  engagement  is  called  a  condition,  and 
not  a  warranty,  but  the  essential  matter  is  the  nature  of  the  en- 
gagement.®^ The  right  to  reject  is  not  confined  to  cases  where 
the  warranty  of  quality  is  implied.  "When  there  is  an  express 
warranty  of  quality  upon  an  executory  contract  of  sale,  and 
the  articles  which  are  the  subject  of  the  contract  are  found, 
when  delivery  is  tendered  to  the  vendee,  not  to  correspond  to 
the  warranty,  *  *  *  he  may  return  the  articles  and  rescind 
the  contract."  ®°  It  seems  that  the  rule  is  the  same  in  the  case 
of  a  contract  to  sell  specific  goods,  accompanied  by  a  warranty 
of  quality,  where  the  property  has  not  passed.®^ 

The  right  to  reject  arises  whenever  there  is  a  breach  of  a 
warranty  or  promise  with  reference  to  the  goods  which  is  an 
essential  term  of  the  contract.  "A  statement  descriptive  of  the 
subject-matter,  or  of  some  material  incident,  such  as  the  time  or 
place  of  shipment,  is  ordinarily  to  be  regarded  as  a  warranty 
in  the  sense  in  which  the  term  is  used  in  insurance  and  mari- 
time law;  that  is  to  say,  a  condition  precedent,  upon  the  failure 
or  nonperformance  of  which  the  party  aggrieved  may  repudiate 

88  Pope  V.  Allis,  115  U.  S.  363,  6  Sup.  Ct.  69,  29  L.  Ed.  393,  per 
Woods,  J.  See  2  Smith,  Lead.  Cas.  (Sth  Am.  Ed.)  *31;  Beuj.  Sales, 
§  895. 

8  9  Ante,  p.  282. 

9  0  Rubin  v.  Sturtevant,  80  Fed.  930,  20  C.  C.  A.  259,  per  Wal- 
lace, J. 

91  Benjamin,  Sales,  §§  889-892,  commenting  on  Heyworth  v. 
Hutchinson,  L.  R.  2  Q.  B.  447,  which  was  a  case  where  specific 
goods  to  arrive  by  ship  were  guaranteed  "about  similar  to  samples," 
and  there  are  dicta  to  the  effect  that  where  the  contract  is  for 
specific  goods,  the  buyer  has  no  right  to  reject  for  breach  of  war- 
ranty. See  Hawkins  v.  Pemberton,  51  N.  Y.  198,  10  Am.  Rep.  595; 
ante,  p.  264.  Cf.  Varley  v.  Whipp  (1900)  1  Q.  B.  513.  See  Sales  Act^ 
§§  11  (2),  69  (1)  (c). 


^  110)  HKKAcn  OF  waui:a.nty.  [U')1 

the  whole  contract."  **  Where  there  is  a  warranty  of  title,  if 
the  seller  tenders  goods  to  which  he  has  not  title,  the  buyer 
may  reject  them.*^ 

Where  the  buyer  rejects  the  goods  for  breach  of  warranty, 
two  courses  are  open  to  him:  (1)  He  may  affirm  the  con- 
tract, and  maintain  an  action  against  the  seller  for  damages 
for  the  breach  of  the  contract.***  Here  the  position  of  the  buy- 
er is  substantially  the  same  as  in  an  action  against  the  seller 
for  failing  to  deliver  the  goods.""  (2)  The  buyer  may  rescind 
the  contract  and  sue  to  recover  the  price,  or  any  part  of  it, 
which  he  has  paid.*"  Here  the  seller  is  in  substantially  the 
same  position  as  when  he  rescinds  the  contract  for  so-called 
failure  of  consideration." 

92  Xorrington  v.  Wright,  115  U.  S.  188,  C.  Sup.  Ct.  12,  29  I>.  Ed. 
3r,G.  IXT  Gray.  J.  See.  also,  Fllley  v.  Vu^o,  IK,  V.  S.  2i:5.  0  Sup. 
Ct.  U>.  29  L.  Ed.  372. 

»»  Ante.  p.   245. 

o«  Hamilton  v.  Ganvard.  2  Abb.  Dec.  (N.  Y.)  014;  Taylor  v. 
Saxo.  134  N.  Y.  07,  31  N.  E.  258.     See  Sales  Act,  §  GO  (1)  (c). 

9B  Ante,  p.  S.^S. 

80  Pope  V.  Allls.  11.^  U.  S.  .?»;,•?.  (i  Sup.  Ct.  09,  29  E.  Ed.  393;  Rubin 
V.  Sturtevant,  SO  Fed.  9:',0,  2G  C.  C.  A.  2o9;  Meador  v.  Cornell,  58 
N.  J.  Law.  375.  3:i  Atl.  9G0.    See.  also,  Barr  v.  Ix)gan,  rt  liar.  (Del.)  52. 

Wlion  there  is  an  expres.s  warranty  upon  an  exofutory  fontrart 
of  sale,  and  the  artieles  whioh  are  the  subie<t  tiiereof  do  not  eor- 
respoiid  to  the  warranty,  the  vendee  may  return  them,  as  not  being 
what  he  has  apreod  to  buy,  and  rt-seind  the  contraft;  and  if  several 
distinct  articles  at  difTorent  prii-es  are  enil)raced  In  the  contract, 
thoncrh  covered  by  the  same  warranty,  a  right  of  rescission  exists 
as  to  each.  Wlien  the  vendee  in  an  executory  contract  of  sale  re- 
scinds the  contract,  and  returns  the  goods,  because  they  do  not 
correspond  to  a  warranty,  but  the  vendor  refuses  to  receive  them, 
it  is  proper,  if  not  obligatory,  for  the  vendee  to  take  such  measures 
as  are  expedient  to  save  unnecessary  loss  to  the  vendor,  and  if  he 
sells  them,  exercising  reasonable  diligence  he  Is  responsible  only 
for  the  proceeds.  Rubin  v.  Sturtevant,  supra.  See  Sales  Aet,  i 
00  (1)  (d). 

»T  Ante,  p.  .?0l. 


368  ACTIONS  FOK   BREACH   OF   THE   CONTRACT.        (Ch.  10 


SAME— RIGHTS  AFTER  ACCEPTANCE. 

120.  Where  there  is  a  breach  of  w^arranty,  if  the  buyer  has 

accepted  the    goods,    he    may,   at   his    election — 

(a)  In.  many  (but  not  in  most)  jurisdictions  rescind  the  sale, 

and  return  or  offer  to  return  the  goods  to  the  seller, 
and  recover  the  price,  or  any  part  thereof,  -which  has 
been  paid. 

(b)  Maintain  an  action  against  the  seller  for  damages  for 

breach  of  the  v?^arranty. 

(c)  Set  up  against  the  seller  the  breach  of  -ro-arranty  by  -way 

of  recoupment  in  diminution  or  extinction  of  the  price. 

121.  MEASURE    OF    DAMAGES    FOR    BREACH    OF    WAR- 

RANTY. The  measure  of  damages  for  breach  of  -war- 
ranty is  the  loss  directly  and  naturally  resulting,  in 
the  ordinary  course  of  events,  from  the  breach  of  -war- 
ranty. In  the  case  of  breach  of  -warranty  of  quality 
or  condition,  such  loss,  in  the  absence  of  special  cir- 
cumstances sho-wing  proximate  damage  of  a  greater 
amount,  is  the  difference  between  the  value  of  the 
goods  at  the  time  of  delivery  to  the  buyer  and  the 
value  they  -would  have  had  if  they  had  answered  to 
the  -warranty. 

Rescission. 

If  the  buyer  accepts  the  goods,  it  is  held  in  England,  and  in 
many  jurisdictions  in  this  country,  that  he  cannot  afterwards 
rescind  the  sale  and  return  the  goods  on  account  of  a  mere 
breach  of  warranty.®^    By  accepting,  he  waives  his  right  to  re- 

9  8  street  v.  Blay,  2  Barn.  &  Adol.  456;  Gompertz  v.  Dentou.  1 
Cromp.  &  M.  207;  Payne  v.  Whale,  7  East,  274;  Dawson  v.  Collis, 
10  C.  B.  523,  533;  Tliornton  v.  Wynn,  12  Wheat.  (U.  S.)  183,  6  L. 
Ed.  595;  Jlatteson  v.  Holt,  45  Vt.  336;  Freyman  v.  Knecht,  78  Pa. 
141;  Muller  v.  Eno,  14  N.  Y.  597;  Fairbauk  Canning  Co.  v.  Metzger, 
118  N.  y.  260.  269,  23  N.  E.  372,  16  Am.  St.  Rep.  753;  Hoover  v. 
Sldener,  98  Ind.  290;  Lightburn  v.  Cooper,  1  Dana  (Ky.)  273;  Allen 
V.  Anderson,  3  Humph.  581,  39  Am.  Dec.  197;  Merrick  v.  Wiltse, 
37  Minn.  41,  33  N.  W.  3;  Wright  v.  Davenport,  44  Tex.  164;  Owens 
V.  Sturges,  67  111.  366;  Kemp  v.  P'reeman,  42  111.  App.  500  (but  see 
Sparling  v,  Marks,  86  111.  125);  Lynch  v.  Curfman,  65  Minn.  170, 
68  N.  W.  5;  H.  W.  Williams  Transp.  Line  v.  Transportation  Co., 
129  Mich.  209,  88  N.  W.  473,  56  L.  R.  A.  939;  Worcester  Mfg.  Co. 
v.  Brass  Co.,  73  Conn.  554,  48  Atl.  422;  Thomas  China  Co.  v.  C.  W. 
Raymond  Co.,  135  Fed.  25,  67  C.  C.  A.  629;  Sale  of  Goods  Act,  §  53. 
The  cases  pro  and  con  are  collected  16  Harv.  Law  Rev.  465.    The 


I 


§fj  1  "JO    121)  ni:KAClI    OF    WAKKANTY.  3«;0 

jcct  thcin,  and,  in  the  absence  of  fraud  ""  or  special  agree- 
ment,'°°  must  seeiv  his  remedy  either  by  action  on  the  war- 
ranty or  by  setting  up  the  breach  in  diminution  of  the  price. 
And  this  appHes  equally,  whether  the  sale  is  of  a  specific 
chattel  unconditionally,  in  which  case  an  acceptance  takes  place 
when  the  contract  is  entered  into,  or  where  there  is  a  contract 
to  sell  unascertained  goods,  which  are  subsecjuently  acce])ted. 
In  many  states,  however,  a  different  rule  prevails,  and  it  is 
held  that  the  buyer  may  rescind  the  contract  for  breach  of 
warranty,  notwithstanding  acceptance,  and  recover  what  he 
has  paid,  provided  he  seasonably  returns  or  offers  to  return 
the  goods  to  the  seller.^"^     In  favor  of  this  rule  it  is  to  be  said 

buyer  cannot  rescind  after  using  part  of  the  goods.     Lyon  v.  B.-rt- 
riuu.  20  How.  (U.  S.)  14i).  15  L.  Ed.  847. 
»»  Ante.  p.  174. 

100  Eyers  v.  Haddcm  (C.  C.)  70  Fed.  G4S;  McCormlck  Harvesting 
-Maoh.  Co.  V.  Knoll.  57  Neb.  790,  78  N.  W.  394. 

101  Bryant  v.  Lsburgh,  13  Gray  (Mass.)  007.  74  Am.  Dec.  0.">; 
Smith  V.  Hale.  158  Mass.  178,  33  N.  E.  493,  35  Am.  St.  Kep.  4S%: 
Branson  v.  Turner,  77  Mo.  4S9;  Johnson  v.  .\grlcultural  Co.,  liO  Mo. 
.\pp.  101;  Rogers  v.  Hanson.  35  Iowa,  '2i\i;  Upton  Mfg.  Co.  v. 
Huiske,  09  Iowa,  557,  29  N.  W.  G21  (cf.  Eagle  Iron  Works  v.  Iljiilway 
Co.,  101  Iowa,  289,  70  N.  W.  193) ;  Tj-ler  v.  City  of  Augusta,  &s 
Me.  504,  34  Atl.  406;  Milliken  v.  Randall,  89  Me.  200.  30  Atl.  75; 
Libby  V.  Haley,  91  Me.  :«1,  39  Atl.  10<>4 ;  Boothby  v.  S«-ales,  27 
Wis.  G2(!;  Barry  Mfg.  Co.  v.  Tobin.  100  Wis.  2S0.  82  N.  W.  154: 
dale  Sulky-Harrow  Mfg.  Co.  v.  Stark.  45  Kan.  OOG.  20  Fac.  8.  23 
-Vm.  St.  Rep.  739;  Thompson  v.  Harvey,  80  Ala.  519,  5  South.  825; 
Hodge  v.  Tufts,  115  Ala.  300,   22   South.  422. 

"He  to  whom  property  Is  sold  with  an  express  warranty,  as  well 
as  he  to  whom  it  is  sold  with  an  implied  warranty,  may  rescind 
for  breach  of  warranty,  by  a  seasonalile  return  of  the  property,  and 
thus  entitle  himself  to  a  full  defense  to  a  suit  brought  against  him 
for  the  price  of  the  property,  or  to  an  action  against  the  seller  tn 
recover  bark  the  price.  If  It  have  been  paid  to  blm.  •  •  •  In  1SH». 
wlien  the  case  of  Bradford  v.  Manly,  13  Mass.  1.39.  7  Am.  Dec.  122. 
was  before  this  court,  and  afterwards,  until  1831.  the  law  of  Eng- 
bind  on  the  point  raised  in  the  present  case  was  supposed  (t)  be  as 
we  now  hoUl  it  to  l>e  here.  I^rd  Eldon  had  said  in  Curtis  v.  Han- 
nay,  3  Esp.  82,  that  he  took  it  to  be  'clear  law,'  and  so  it  was  lai«l 
down  in  2  Sehv.  N.  P.  Hst  Ed.)  .580,  In  1807,  and  In  Long.  Sales.  125. 
120.  in  1821.  and  in  2  Starkie,  Ev.  (1st  Ed.)  ('►45.  In  1825.  In  is.".!. 
In  Street  v.  Blay,  2  Barn.  &  Adol.  4<n.  Lord  Eldon's  opinion  was 
first  denied,  and  a  contrary  opinion  expross(<(l  by  the  court  of  king's 
bench.  Yet  our  court  subsequently  (in  1839)  decided  the  case  ot 
TiFF.SAT.T:s(2n  En.)— 24 


370  ACTIONS   rOK    BREACH    OF   THE    CONTRACT.        (Ch.  10 

that,  although  the  warranty  be  collateral  in  form,  it  is  an  induce- 
ment to  the  sale  and  a  material  element  of  the  consideration, 
and  that  what  the  buyer  has  in  mind  is  the  performance  of 
the  warranty,  and  not  damages  for  its  breach. ^"^  This  rule  is 
adopted  by  the  proposed  Sale  of  Goods  Act,^''^  which  pro- 
vides that,  where  there  is  a  breach  of  warranty  by  the  seller, 
the  buyer  may,  at  his  election,  as  one  of  his  alternative  reme- 
dies, "rescind  the  contract  to  sell,  or  the  sale,  and  refuse  to  re- 
ceive the  goods,  or,  if  the  goods  have  already  been  received, 
return  them,  or  oflFer  to  return  them,  to  the  seller,  and  recover 
the  price,  or  any  part  thereof,  which  has  been  paid." 

Action  for  Damages. 

That  the  buyer,  after  receiving  or  accepting  the  goods,  may 
still  bring  an  action  for  damages  in  case  the  goods  are  inferior 
in  quality  to  that  warranted,  follows,  as  Benjamin  says,^'** 
from  the  general  rule  that  an  action  for  damages  lies  in  every 
case  of  a  breach  of  contract. 

Where  the  warranty  is  express,  the  courts  are  substantially 
unanimous  in  holding  that  the  warranty  survives  acceptance 

Perley  v.  Balcli.  23  Pick.  283.  34  Am.  Dec.  56.  The  doctrine  of  that 
decision  prevents  circuity  of  action  and  multiplicity  of  suits,  and  at 
the  same  time  accomplishes  all  the  ends  of  justice."  Bryant  v.  Is- 
burgh,  supra,  per  Metcalf,  J. 

102  "It  is  obvious  that  when  a  buyer  buys  a  borse,  warranted 
sound,  the  real  thing  he  is  after  is  a  sound  horse.  It  is  the  perform- 
ance of  the  warranty,  not  damages  for  the  breach  of  it,  which  is 
in  his  mind.  He  does  not  want  an  unsound  horse,  worth  half  the 
money,  and  the  difference  in  damages.  He  wants  to  be  perfectly 
sure  that  he  is  getting  a  sound  horse,  and,  if  the  one  transferred 
to  him  is  not  sound,  he  is  as  truly  forced  to  perform  a  bargain 
which  he  never  intended  to  make  as  is  any  defendant,  if  compelled 
to  perform  his  part  of  a  contract  when  the  plaintiff  is  materially 
in  default."     K!  Harv.  Law  Rev.  472. 

103  Section  G9  (1)  (d).  See,  also,  section  69  (3),  (4)  and  (5).  Cf. 
section  49. 

The  remedy  by  rescission  Is  defended  by  Prof.  Williston  agains* 
the  theoretical  objections  that  rescission  is  not  allowable  in  the  case 
of  an  executed  contract  in  any  event,  and  that  a  warranty  is  a  col- 
lateral obligation,  and  on  account  of  the  practical  advantages  of 
allowing  the  remedy.  16  Harv.  Law  Rev.  465.  This  led  to  a  dis- 
cussion Avith  Prof.  Burdlck,  who  supported  the  English  doctrine. 
See  4  Columbia  Law  Rev.  1,  195,  265;   17  Harv.  Law  Rev.  500 

io4Benj.  Sales,  §  897. 


>jjj  120-121)  ni:i;A(  II  uF  wakIvANTY.  liT! 

of  tlic  gouils  notwithstanding  that  the  buyer  has  notice  of  de- 
fects which  constitute  a  breach  of  the  warranty.'*"  An  actirin 
for  breach  of  warranty  may  be  maintained  by  the  buyer  with- 
out giving  notice  to  the  seller  of  the  defects,  and  without  ofTer 
to  return,'"'  though  failure  to  give  notice  or  to  return  raises  a 
strong  presum])tic)n  or  inference  that  the  goods  were  not  ac- 
tually defective.'"^  Some  courts,  however,  hold  that  a  ditfer- 
ent  rule  applies  in  the  case  of  an  implied  warranty. 

lo^Poulton  V.  I.nttimore,  J)  Bnrn.  &  C.  259;  Day  v.  Pool,  r.2  N. 
Y.  41t;,  11  Am.  Kop.  7\9;  Scott  v.  Knyinond.  31  Minn.  4:i7.  18  N.  W. 
274;  Cox  v.  Long,  Gl»  N.  C.  7;  rullu'uius  v.  Ileiumn,  45  Cal.  573; 
I'iiiil)ank  Cauniug  Co.  v.  Motzgcr,  118  N.  T.  2G0.  23  X.  E.  ;'.72.  10 
Am.  St.  Hop.  7r>3;  Minnrsuta  Tbrt'slior  Mfg.  Co.  v.  Ilansnn.  3  N.  D. 
SI.  54  N.  W.  311;  Underwood  v.  Wolf.  131  111.  425.  li.-i  N.  H  .5US.  19 
Am.  St.  Hop.  40;  Iro(|uois  Furnace  Co.  v.  Manufacturing  Co.,  181 
111.  .'.S2.  54  N.  E.  !J87;  Crook  v.  Railroad  Cu..  »<.>  Md.  .^iS.  30  All. 
701;  haiHjrte  Iniinuvcment  Co.  v.  l>roek,  "JD  Iowa.  4n5.  {>S  N.  W. 
810,  Gl  Am.  St.  Kop.  245;  Miamlsburg  Twine  &  C.  Co.  v.  Wohlhuler. 
71  Minn.  484.  74  N.  W.  175;  Stillwell,  etc.,  Co.  v.  Canning  Co.,  78 
.Miss.  779.  29  S()Uth.  513. 

i"-roulton  V.  I^attimure,  9  Barn.  &  C.  259;  Fielder  v.  Starkiu, 
1  II.  I'd.  17;  Patesball  v.  Tranter.  3  Adol.  &  E.  103;  Douglass  Axe 
Maniif'g  Co.  v.  (iardiier,  10  Cush.  (Mass.)  88;  Vincent  v.  Lelaud, 
100  Mass.  4.32;  liichardson  v.  Crandy.  49  Vt  22;  Best  v.  Flint.  58 
Vt.  543.  5  Atl.  192.  50  Am.  Rep.  570;  Babcock  v.  Trice.  18  HI.  42U, 
68  Am.  Dec.  500;  Ferguson  v.  Hosier,  58  lud.  438;  English  v. 
Commission  Co.  (C.  C.)  48  Fed.  190;  Id..  0  C.  C.  A.  410.  .57  Fed.  451; 
Morse  v.  Moore,  83  Me.  473.  22  Atl.  301!.  13  I.^  R.  A.  221.  2.!  Am.  St. 
Rep.  78;]. 

107  Poultun  V.  I.attimore,  9  Barn.  &  C.  2.59,  205;  Babcock  v.  Trice. 
IS  111.  420,  08  Am.  Dec.  500;  Morse  v.  Moore,  83  Me.  473.  22  Atl. 
302,  13  I*  R.  A.  224.  23  Am.  St.  Rop.  783;  Tacoma  Ccal  Co.  v. 
Bradley,  2  Wash.  GOO,  27  Pac.  4.54.  20  Am.  St.  Rep.  890;  Norlliwest- 
eru  Cordage  Co.  v.  Rice.  5  N.  D.  432.  07  N.  W.  298.  57  Am.  St.  Rep. 
503;  Hodge  v.  Tufts,  115  Ala.  300.  22  South.  422;  Benj.  Sales,  5  9mt 
Cf.  Oakland  Sugar  Mill  Co.  v,  Fred  W.  Wolf  Co..  118  Fed.  239.  .55 
C.  C.  A.  93.  Some  courts,  however,  draw  a  distinction  between 
patent  and  latent  defects,  and  hold  that,  if  the  defects  are  so  visible 
that  it  is  apparent  the  buyer  knew  of  them  when  he  received  Che 
goods,  the  buyer,  by  accepting  the  goods  in  fullillmeut  of  the  con- 
tract, waives  his  right  to  avail  himself  of  the  warranty.  See  Biif- 
falo  Barb-Wiie  Co.  v.  Phillips,  07  Wis.  129,  30  N.  W.  295;  Locke 
V.  Williamson.  40  Wis.  377;  Morehouse  v.  Comstock,  42  Wis.  020; 
Nye  V.  Alcohol  Works.  51  b.wa.  129.  50  N.  W.  9^.  33  Am.  Rep.  121 
Of.  r.<arson  v.  Aultman  &  'laylor  Co.,  8G  Wis.  281.  50  N.  W.  915.  30 
Am.  St.  Rep.  S93.     See  Sales;  Act.  §  49;   ante,  p.  301. 


372  ACTIONS   FOR   BREACH   OF   THE   CONTRACT.       (Ch.  10 

Same — Breach  of  Implied  Warranty. 

The  distinction  between  a  "warranty"  in  the  narrower  sense 
— that  is,  a  promise  with  reference  to  the  goods  when  it  is 
collateral  to  the  main  purpose  of  the  contract — and  a  promise 
the  performance  of  which  by  the  seller  is  a  condition  precedent 
to  the  obligation  of  the  buyer  to  accept  the  goods,  and  which  is 
often  itself  termed  a  "condition,"  has  been  pointed  out/*'^ 

In  England,  where  the  seller's  implied  promises  of  quality, 
as  well  as  the  implied  promises  in  sales  by  description  and  by 
sample  are  termed  "conditions,"  the  rule  nevertheless  prevails 
that  the  buyer  may  waive  performance  of  the  condition  and 
may  elect  to  treat  the  breach  of  the  condition  as  a  breach  of 
warranty,  and  he  may,  therefore,  if  the  goods  do  not  fulfill 
the  condition,  accept  them  and  set  up  the  breach  of  warranty 
in  diminution  or  extinction  of  the  price,  or  maintain  an  action 
for  damages  for  the  breach. ^"^ 

In  the  United  States,  although  these  implied  promises  of 
the  seller  are  usually  termed  "warranties,"  by  weight  of  au- 
thority the  rule  is  substantially  the  same ;  that  is,  the  warranty 
survives  acceptance  of  the  goods,  notwithstanding  that  the 
buyer  has  notice  of  defects  which  constitute  a  breach  of  the 
warranty,  unless  it  appears  that  he  accepted  the  goods  in  full 
satisfaction  of  the  contract,  and  he  may  seek  redress  in  an 
action  or  counterclaim  for  damages,  or  in  recoupment  when 
sued  for  the  price.^^°     Thus,  in  a  leading  case/^^  where  there 

108  Ante,  p.  226. 

109  Sales  of  Goods  Act,  §§  11  (1)  (a),  53  (1).  See  Benj.  Sales,  § 
564,  citing  Ellen  v.  Topp,  6  Exeh.  424 ;  Behn  v.  Burners,  3  Best  &  S. 
751,  32  Law  J.  Q.  B.  204. 

110  Bagley  v.  Mill  Co.  (C.  C.)  21  Fed.  159;  English  v.  Commis- 
sion Co.  (C.  C.)  48  Fed.  197;  Id.,  6  C.  C.  A.  416,  57  Fed.  451;  Reynolds 
V.  ralmer  (C.  C.)  21  Fed.  433;  Cleveland  Linseed  Oil  Co.  v.  A.  F. 
Buchanan  &  Sons,  120  Fed.  906,  57  C.  C.  A.  498;  Wolcott  v.  Mount. 
36  N.  J.  Law,  262,  13  Am.  Rep.  438;  Holloway  v.  Jacoby,  120  Pa, 
583,  15  Atl.  487,  6  Am.  St.  Rep.  737;  Lewis  v.  Rountree.  78  N.  C. 
323;  Eagan  Co.  v.  Johnson,  82  Ala.  233,  2  South.  302;  Dayton  v. 
Hooglund,  39  Ohio  St.  671;  Morse  v.  Moore,  83  Me.  473,  22  Atl.  362, 
13  L.  R.  A.  224.  23  Am.  St.  Rep.  783;  Tacoma  Coal  Co.  v,  Bradley, 
2  AVash.  St.  600,  27  Pac.  454,  26  Am.  St.  Rep.  890;  Morse  v.  Stock- 
yard Co.,  21  Or.  289,  28  Pac.  2,   14  L.  R.   A.   157;    Northwestern 

111  English  V.  Commission  Co.,  57  Fed.  451,  6  C.  C.  A.  416. 


§§  120-121)  HltKACII    OF    WAKKANTT.  373 

was  ail  implied  warranty  tliat  the  poods  should  be  of  incr- 
chantahle  (juaUty,  it  was  said :  "There  has  been  some  con- 
troversy in  the  courts  as  to  the  rij^ht  of  the  purchaser  to  ac- 
cept the  goods  and  rely  upon  the  warranty ;  some  of  the  au- 
thorities hoUHng  that  where  the  sale  is  executory,  and  the 
j^oods,  upon  arrival  at  the  place  of  delivery,  are  found  upon 
examination  to  be  unsound,  the  purchaser  must  immediately 
return  thcni  to  the  vendor,  or  give  him  notice  to  take  them 
back,  and  thereby  rescind  the  contract,  or  he  will  be  presumed 
to  have  ac(|uiesced  in  the  quality  of  the  goods.  But  the  great 
weight  of  authority,  as  well  as  reason,  is  now,  we  think,  well 
settled  that  in  cases  of  this  kind  and  character,  if  the  goods 
upon  arrival  at  the  place  of  delivery  are  found  to  be  unmer- 
chantable in  whole  or  in  part,  the  vendee  has  the  option  either 
to  reject  them,  or  receive  them  and  rely  upon  the  warranty ; 
and,  if  there  has  been  no  waiver  of  the  right,  he  may  bring  an 
action  against  the  vendor  to  recover  the  damages  for  a  breach 
of  the  warranty,  or  set  up  a  counterclaim  for  such  damages 
in  an  action  brought  by  the  vendor  for  the  purchase  price  of 
the  goods."  This  rule,  which  is  supported  by  the  weight  of 
.luthority,  is  adopted  by  the  projjoscd  American  Sales  Act."' 
In  some  states,  however,  a  distinction  is  drawn  between  "con- 
ditions" and  warranties;  and  it  is  held  that  while  a  collateral 
promise  survives  acceptance,  even  as  to  known  defects,  a 
promise  that  the  goods  shall  be  of  a  certain  kind  or  quality, 
forming  part  of  the  flescri])tion.  docs  not  survive  acce])tance, 
so  far  as  concerns  visible  defects,  when  the  buyer  has  had  an 
opportunity  to  inspect,  but  that  if,  after  opportunity  for  in- 
spection, the  buyer  accepts  the  goods,  he  is  precluded  from  re- 
covering damages  for  any  variation  between  the  goods  de- 
livered and  the  goods  described  in  the  contract.^ '^ 

Cordage  Co.  v.  Rice,  5  N.  D.  432,  G7  N.  W.  2118,  57  Am.  St.  Rep.  rRK; 
(Jraff  V.  D.  M.  Osborno  &  Co.,  ">(".  Kan.  1<;2,  42  I'ae.  704:  Cainpion 
V.  Marston,  09  Me.  410,  59  Atl.  548;  Alabama  Steel  &  Wire  Co.  v. 
Symons,  110  Mo.  App.  41,  83  S.  W.  78.  See.  also,  Marsh  v.  Mc- 
Pberson.  105  U.  S.  TOit,  26  L.  Kd.  113'.t. 

112  See  sections  40.  00  (1)  (a),   (b).     Cf.   scrtion   15  (IW. 

iiallaase  v.  Nonnemacher,  21  Minn.  480;  Maxwell  v.  Lee.  34 
Minn.  511,  27  N.  W.  190;  Thompson  v.  Libby,  35  Minn.  413.  29  N. 
W.  l.'iO  (implied  condition  of  mercbantableness  does  not  survive  ac- 


374  ACTIONS   FOR   BREACH    OF   THE    CONTRACT.         (Ch.  10 

Diminutio)i  of  damages — Recoupment. 

Instead  of  bringing  an  action  for  damages,  the  buyer  may 
wait  till  he  is  sued  for  the  price,  and  then  set  up  the  breach 

ceptance  in  respect  to  visible  defects);  Lree  v.  Bangs,  43  Minn.  23, 
44  N.  W.  671  (sale  by  sample):  Rosentield  v.  Swenson,  45  Minn.  190. 
47  N.  W.  718  (cf.  Breen  v.  Moran,  51  Minn.  525,  53  N.  W.  755,  hold- 
ing that  an  implied  warranty  of  fitness  for  purpose  survives);  Com- 
stock  V.  Sanger,  51  Mich.  497,  16  N.  W.  872;  Williams  v.  Robb,  104 
Mich.  242,  62  N.  W.  352;  W.  K.  Henderson  Lumber  Co.  v.  Stil- 
well  &  Co.,  130  Mich.  124,  89  N.  W.  718;  Talbot  Paving  Co.  v.  Gor- 
man, 103  Mich.  403,  61  N.  W.  655,  27  L.  R.  A.  96;  Jones  v.  McEwan, 
91  Ky.  373,  16  S.  W.  81,  12  L.  R.  A.  399  (cf.  Munford  v.  Kevil,  lOG 
Ky.  246,  58  S.  W.  703) ;  Hazen  v.  Wilhelmie,  68  Neb.  79,  93  N.  W. 
920;  Neff  v.  McNeeley,  1  Neb.  (Unof.)  416,  90  N.  W.  150.  And  see 
Day  v.  Const.  Co.,  174  Mass.  412.  54  N.  E.  878.  It  is  difficult  to 
reconcile  all  the  New  York  cases  on  this  point,  but  the  result  of  the 
later  decisions  may  be  gathered  from  the  following  extracts  and 
citations:  "An  acceptance  by  the  vendee  of  personal  property  man- 
ufactured under  an  executory  contract  of  sale,  after  a  full  and  fair 
opportunity  of  inspection,  in  the  absence  of  fraud,  estops  him  from 
thereafter  raising  any  objection  to  visible  defects  and  imperfections, 
whether  discovered  or  not,  unless  such  delivery  and  acceptance  is 
accompanied  by  some  warranty  of  quality  manifestly  intended  to 
survive  acceptance.  Reed  v.  Randall,  29  N.  Y.  358,  80  Am.  Dec.  305; 
Gaylord  Mfg.  Co.  v.  Allen,  53  N.  Y.  515;  Gurney  v.  Railroad  Co., 
58  N.  Y.  358;  Norton  v.  Drey  fuss,  106  N.  Y.  90',  12  N.  B.  428;  Cop- 
lay  Iron  Co.  V.  Pope,  108  N.  Y.  232.  15  N.  E.  335;  Brown  v.  Foster, 
108  N.  Y.  387,  15  N.  E.  608."  Studer  v.  Bleistein,  115  N.  Y.  316, 
325,  22  N.  K  243,  5  L.  R.  A.  702.  per  Ruger,  C.  J.  "Upon  an  execu- 
tory sale  of  goods  by  sample,  with  warranty  that  the  goods  shall 
correspond  with  the  sample,  the  vendee  is  not  precluded  from  claim- 
ing and  recovering  dainages  for  breach  of  warranty,  although  he 
has  accepted  the  goods  after  an  opportunity  for  inspection.  Kent 
V.  Friedman,  101  N.  Y.  616,  3  N.  E.  905;  Brigg  v.  Hilton,  99  N.  Y. 
517,  3  N.  E.  51,  52  Am.  Rep.  63;  Gurney  v.  Railroad  Co.,  58  N.  Y. 
358.  *  *  *  The  cases  of  Coplay  Iron  Co.  v.  Pope,  108  N.  Y.  232, 
15  N.  E.  335;  Studer  v.  Bleistein.  115  N.  Y.  310,  22  N.  E.  243,  5  L. 
R,  A.  702;  Pierson  v.  Crooks,  115  N.  Y.  539,  22  N.  E.  349,  12  Am. 
St.  Rep.  831,  and  other  cases  of  like  character — are  clearly  distin- 
guishable, inasmuch  as  one  is  a  contract  concerning  a  sale  by  sample, 
and  the  others  were  executory  contracts  for  the  manufacture  and 
sale  or  delivery  of  goods  of  a  particular  description.  In  cases  of 
the  latter  character,  where  the  quality  of  the  goods  is  capable  of 
discovery  upon  inspection,  and  where,  after  full  opportunity  for 
such  inspection,  the  goods  are  accepted,  and  no  warranty  attends 
the  sale,  the  vendee  is  precluded  from  recovering  damages  for  any 
variation  between  the  goods  delivered  and  those  described  in  the 


§§   120-121)  BRKACU    OF    WAUUAMV.  375 

ui  warranty  in  diminution  pro  tanto  of  the  damages."*  An<l 
at  common  law  this  was  his  only  way  of  availing  himself  of 
a  breach  of  warranty  as  a  defense.  The  rule  was  stated  by 
Parke,  B.,  in  the  leading  case  of  Monde!  v.  Steel,*"'  as  fol- 
lows :  "Formerly  it  was  the  practice,  when  an  action  was 
liroui^ht  for  an  agreed  price  of  a  specific  chattel  sold  with  a 
warranty,  to  allow  the  plaintiff  to  recover  the  stipulated  sum, 
leaving  the  defendant  to  a  cross  action  for  breach  of  the  war- 
ranty ;  in  which  action  as  well  the  difference  between  the  price 
contracted  for  and  the  real  value  of  the  articles  as  any  conse- 
quential damage  might  have  been  recovered.  *  *  *  "Yhe 
performance  of  the  warranty  not  being  a  condition  precedent 
to  the  payment  of  the  price,  the  defendant  who  received  the 

i'ontract."  Zabriskie  v.  Railroad  Co.,  131  N.  Y.  72,  20  N.  E.  1000, 
per  Iliijipr,  C.  J.  See,  also,  Day  v.  Pool,  52  N.  Y.  410.  11  Am.  Reix 
719:  Parks  v.  Tool  Co.,  .^54  N.  Y.  586;  Gentilll  v.  Staraee,  133  N. 
Y.  HO.  30  X.  R  r.i;0:  Carleton  v.  Lombard,  140  N.  Y.  137,  43  N.  E. 
422;  Piorman  v.  Mills  Co.,  151  N.  Y.  482,  45  N.  E.  850,  37  I>.  R.  A. 
700,  50  Am.  St.  Rep.  035;  ^^■aebe^  v.  Talbot,  107  N.  Y.  48,  00  N.  E. 
28.8,  82  Am.  St.  Rep.  72;  Bell  v.  Mills,  78  App.  Div.  42,  80  N.  Y. 
Supp.  34;  Lifshltz  v.  McConnell,  80  App.  Div.  280,  80  N.  Y.  Supp. 
2,".3;  Lioliteiistein  v.  Rabolinsky,  98  App.  Div.  510,  90  N.  Y.  Supp. 
247,  affirmed  1S4  N.  Y.  520,  70  N.  E.  1009.  "Where  the  purchaser 
of  goods  delivered  on  an  executory  contract,  with  full  knowledce, 
or  with  full  opportunity  for  examination  and  knowledge,  of  their 
defects,  which  are  open  and  apparent  upon  mere  inspection,  takes 
them  into  his  possession,  and  appropriates  them  to  his  own  use, 
without  notifying  the  vendor  at  the  time  of  receiving  them,  or 
within  a  reasonable  time  thereafter,  that  they  are  not  accepted  as 
fulfilling  the  contract,  he  cannot  recoup  damages  for  such  defects 
or  failures  in  an  action  for  the  contract  price."  McClure  v.  Jeffer- 
son, 85  Wis.  208,  54  N.  W.  777,  per  Cassidy,  J.  Cf.  Northern  Sup- 
ply Co.  V.  Wangard.  117  Wis.  024,  94  N.  W.  785,  98  Am.  St.  Rep.  0(i3. 

inMondel  v.  Steel,  8  Mees.  &  W.  858;  Withers  v.  Greene,  9 
IIow.  (U.  S.)  213,  13  L.  Ed.  109;  Lyon  v.  Bertram,  20  How.  (U.  S.) 
149,  154,  15  L.  Ed.  847;  Bradley  v.  Rea,  14  Allen  (Mass.)  20:  Dailoy 
v.  Green,  15  Pa.  118,  120;  Dayton  v.  Hooglund,  30  Ohio  St.  071; 
Under\v<K>d  v.  Wolf.  131  111.  425,  23  N.  E.  508,  19  Am.  St.  Rep.  40; 
Morehouse  v.  Comstock,  42  Wis.  620;  Polhemus  v.  Ileiman,  45  Cal. 
573;  Breen  v.  Mornn.  51  Minn.  525,  53  N.  W.  755;  C<>ntral  Trust  Co. 
V.  Manufacturing  Co.,  77  Md.  202.  20  Atl.  403;  Avery  v.  Burrall, 
118  Mich.  072,  77  N.  W.  272;  Parry  Mfg.  Co.  v.  Tobin,  106  Wis. 
2.S6,  82  N.  W.  154. 

115  s  Meois.  &  W.  858. 


376  ACTIONS  FOR  BREACH   OF  THE   CONTRACT.       (Ch.  10 

chattel  warranted  has  thereby  the  property  vested  in  him  in- 
defeasibly,  and  is  incapable  of  returning  it  back.  He  has  all 
that  he  stipulated  for  as  the  condition  of  paying  the  price,  and 
therefore  it  was  held  that  he  ought  to  pay  it,  and  seek  his  rem- 
edy on  the  plaintiff's  contract  of  warranty.  *  *  *  But, 
after  the  case  of  Basten  v.  Butter  (7  East,  479),  a  different 
practice  began  to  prevail,  and,  being  attended  with  much  prac- 
tical convenience,  has  since  been  generally  followed ;  and  the 
defendant  is  now  permitted  to  show  that  the  chattels,  by  rea- 
son of  the  noncompliance  with  the  warranty,  were  diminish- 
ed in  value.  *  *  *  The  rule  is  that  it  is  competent  for  the 
defendant,  not  to  set  off  by  a  procedure  in  the  nature  of  a  cross 
action  the  amount  of  damages  which  he  has  sustained  by 
breach  of  the  contract,  but  simply  to  defend  himself  by  show- 
ing how  much  less  the  subject-matter  of  the  action  was  worth, 
by  reason  of  the  breach  of  contract ;  and  to  the  extent  that  he 
obtains,  or  is  capable  of  obtaining,  an  abatement  of  price  on 
that  account,  he  must  be  considered  as  having  received  satis- 
faction for  the  breach  of  contract,  and  is  precluded  from  re- 
covering in  another  action  to  that  extent,  but  no  more." 

This  case  also  determined  that  the  buyer  must  bring  a  cross 
action  if  he  desired  to  claim  consequential  or  special  damages ; 
but,  under  the  changed  procedure  now  generally  prevailing, 
the  buyer  may  recover  such  damages  by  way  of  counter- 
claim.^^® And  to-day  in  most  states  such  damages  may  be  set 
up  by  way  of  defense  or  counterclaim  in  an  action  on  a  note 
given  for  the  price.^^^ 

lie  See  Zabriskie  v.  Railroad  Co.,  131  N.  Y.  72,  29  N.  E.  1009; 
Kester  v.  Miller,  119  N.  C.  475,  26  S.  E.  115. 

Sale  of  Goods  Act.  §  53  (4),  following  Mondel  v.  Steel,  supra,  al- 
lows the  buyer  to  recoup  his  damages  in  an  action  for  the  price  and 
thereafter  to  bring  an  action  for  damages.  "This  seems  erroneous," 
says  Prof.  Williston  in  his  note  to  Sales  Act,  §  69,  "and  has  been 
changed  in  this  draft" — citing  Watkins  v.  Bank,  134  Fed.  36,  67 
C.  C.  A.  110. 

117  Withers  v.  Greene,  9  How.  (U.  S.)  213,  13  L,  Ed.  109;  Ruflf  v. 
Jarrett,  94  111.  475;  Wentworth  v.  Dows,  117  Mass.  14,  per  Colt,  J.r 
Wright  V.  Davenport,  44  Tex.  164;  Schurmeier  v.  English,  46  Minn. 
306,  48  N.  W.  1112. 


§§  120-121)  BllF.AClI    OF    WAIUJANTY.  377 

Measure  of  Damages. 

In  accordance  with  the  general  rule  of  damages  in  cases  of 
breach  of  contract,  the  measure  of  damages  for  breach  of 
warranty  is  the  loss  directly  and  naturally  resulting  from  the 
breach,  in  the  ordinary  course  of  events.'^** 

In  case  of  a  breach  of  warranty  of  quality  or  condition, 
prima  facie — that  is,  in  the  absence  of  special  circumstances 
showing  proximate  loss  of  a  greater  amount — this  loss  is  the 
difference  between  the  value  of  the  goods  as  they  in  fact  were 
at  the  time  of  delivery^^"  and  the  value  of  the  goods  as  it 
would  have  been  if  they  had  been  as  warranted.^ ^^    Thus  the 

118  Frohreish  v.  Gammon.  2S  Minn.  47(!.  11  N.  W.  88,  and  cases 
cited  in  note  120,  infra.     See  Sales  Act,  §  09  (0) :  ante,  p.  357. 

iioEiyle  Iron  Works  v.  Kailway  Co.,  101  Iowa,  289,  70  N.  W. 
193.  Where  goods,  such  as  fruit  trees,  are  sold  by  description  or 
their  kind  or  quality  is  otherwise  warranted,  and  it  cannot  be  as^ 
certained  until  they  come  into  bearing  whether  they  conform  to  the 
warranty,  the  damages  may  be  calculated  as  of  that  time.  Shearer 
V.  Nursery  Co.,  103  Cal.  415,  37  Pac.  412,  42  Am.  St.  Kep.  12.1. 

Where  plaintiff  bought  an  orchid  described  as  of  a  certain  white 
variety  for  20  guineas,  and  after  cultivation  it  produced  a  purple 
flower  and  was  worth  only  7  s.  6  d.,  but  if  of  the  described  variety 
it  would  have  been  worth  £50,  he  was  entitled  to  wait  till  the  plant 
flowered,  and  to  recover  the  difference  between  its  value  as  a  purple 
orchid  and  as  that  described.  Ashworth  v.  Wells,  78  Law  T.  V.H), 
C.  A.  14  Times  Law  Rep.  227. 

120  Jones  v.  Just,  L.  R.  3  Q.  B.  197;  Dingle  v.  Hare,  7  C.  B.  (N. 
S.)  145,  29  Law  J.  C.  P.  144;  Reggio  v.  Braggiotti,  7  Cush.  (Mass.) 
IGG;  Case  v.  Stevens,  137  Mass.  .551;  Thorns  v.  Diugley,  70  Me. 
100,  35  Am.  Rep.  310;  Rutan  v.  Ludlam,  29  N.  J.  Law,  398;  Frey- 
man  v.  Knecht,  78  Pa.  141;  Porter  v.  Pool,  G2  Ga.  238;  Herring 
V.  Skaggs,  G2  Ala.  180,  34  Am.  Rep.  4;  Ferguson  v.  Hosier,  58 
Ind.  438;  Case  Threshing  Mach.  Co.  v.  Haven,  65  Iowa.  .3.59.  21 
N.  W.  677;  Aultnian  &  Taylor  Co.  v.  Hetherington,  42  Wis.  622; 
Merrick  v.  Wiltse.  37  Minn.  41,  33  N.  W.  3;  Wheeler  &  W.  Mfg. 
Co.  v.  Thompson,  33  Kan.  491,  6  Pac.  902;  E.  A.  Moore  Furni- 
ture Co.  V.  W.  J.  Sloane,  166  111.  457,  46  N.  E.  1128;  Hooper  v. 
Story,  155  N.  Y,  171,  49  N.  E.  773;  J.  I.  Case  Plow  Works  v.  Niles 
&  Scott  Co.,  90  Wis.  590.  63  N.  W.  1013;  Park  v.  Richardson  & 
Boynton  Co.,  91  Wis.  189,  64  N.  W.  8.59;  Maimisburg  Twine  & 
Cordage  Co.  v.  Wohlhuter.  71  Minn.  484,  74  N.  W.  175;  Western 
Twine  Co.  v.  Wright,  11  S.  D.  521.  78  N.  W.  942,  44  L.  R.  A.  4.38; 
Crane  Co.  v.  Construction  Co.,  73  Fed.  984,  20  C.  C.  A.  2.33;  Still- 
well,  Bierce  &  Smith-Vaile  Co.  v.  Canning  Co.,  78  Miss.  779.  29 
South.  513.     See  Sales  Act,   §  69  (7). 


378  ACTIONS    FOR   BREACH    OF    THE    CONTRACT.         (Ch.  10 

fact  that  the  vahie  of  the  goods  equaled  or  exceeded  the  price 
does  not  prevent  the  buyer  from  recovering  damages,  if  the 
value  of  the  goods  as  warranted  would  have  been  greater.^ -^ 

The  rules  in  respect  to  special  damages  which  have  been 
stated  are  applicable.^--  The  question  is  what  a  reasonable 
man,  with  the  knowledge  of  the  parties,  would  have  contem- 
plated as  the  probable  result  of  the  breach  of  warranty  had  he 
applied  his  mind  to  it.  Thus,  where  seed  is  sold  for  planting, 
warranted  to  be  of  a  particular  description,  and  different  seed 
is  delivered  and  sown,  the  seller  is  liable  for  the  loss  of  the  crop, 

121  Douglas  V.  Moses  (Iowa)  65  N.  W.  1004.  Evidence  is  not  ad- 
missible in  defense  to  show  that  a  profit  was  realized  by  the  buyer, 
Andrews  v.  Schreiber  (C.  C.)  93  Fed.  3G7. 

122  Ante,  p.  357.  See  Sales  Act,  §  70.  See  Thorns  v.  Dingley.  70 
Me.  100,  35  Am.  Rep.  310 ;  Parks  v.  Tool  Co.,  54  N.  Y.  586 ;  Thorne 
V.  McVeagh,  75  111.  81:  Herring  v.  Skaggs,  02  Ala.  180,  34  Am.  Rep. 
4  (seller  not  liable  for  valuables  stolen  from  safe  warranted  burglar 
proof);  McCormick  v.  Vanatta,  43  Iowa,  389;  Aultman  v.  Stout,  15 
Neb.  586,  19  N.  W.  464;  English  v.  Commission  Co.,  6  C.  C.  A,  416, 
57  Fed.  451;  Coyle  v.  Baum,  3  Okl.  695,  41  Pac.  389;  Snowden  v. 
Waterman,  105  Ga.  384,  31  S.  E.  110;  Johnston  v.  Faxon,  172  Mass. 
466,  52  N.  E.  539.  Buyer  reselling  with  warranty  may  recover  costs 
of  defense  against  subpurchaser,  where  seller  declines  to  defend. 
Lewis  V.  Peake.  7  Taunt.  153;  Hammond  v.  Bussey,  20  Q.  B.  Div. 
79.  Where  the  seller  sold  a  refrigerator  to  a  poultry  dealer  with 
knowledge  that  he  intended  to  use  it  to  preserve  chickens  for  the 
May  market,  and  warranted  that  it  would  keep  them  in  perfect 
condition,  which  it  failed  to  do,  and  many  chickens  were  lost,  the 
buyer  was  entitled  to  recover,  in  addition  to  the  difference  between 
the  value  of  the  refrigerator  as  constructed  and  as  warranted,  the 
market  value  of  the  chickens  lost,  less  expenses  of  sale.  Beeman 
V.  Banta,  118  N.  Y.  ."38.  23  N.  E.  887,  16  Am.  St.  Rep.  779.  Where 
a  manufacturer  of  ice  cream  bought  coloring  matter,  which  the  sel- 
ler, knowing  its  purpose,  represented  to  be  pure  and  harmless,  but 
which  in  fact  was  poisonous,  and  the  buyer's  customers  who  ate 
ice  cream  containing  the  matter  Avere  made  sick,  and  the  buyer  de- 
stroyed the  ice  cream,  held,  that  the  buyer  could  recover  the  value 
of  the  goods  so  destroyed,  and  the  damage  caused  by  the  resulting 
loss  of  customers.  Swain  v.  Schieffelin,  134  N.  Y.  471,  31  N.  E. 
1025,  18  L.  R.  A.  385.  The  buyer,  suing  for  breach  of  warranty  of 
a  tackle  block,  cannot  recover  a  sum  paid  by  him  without  suit,  and 
without  communication  with  the  defendant,  to  a  servant  for  personal 
injuries  caused  by  the  breaking  of  the  block,  unless  the  servant 
might  have  recovered  from  the  plaintiff.  Roughan  v.  Block  Co., 
161  Mass.  24,  36  N.  E.  461. 


§§  120-121)  BUKACII    OK    W  AUUAMY.  37'J 

or  the  diflFcrcncc  in  value  between  the  crop  raised  and  sucli  a 
crop  as  would  ordinarily  have  been  raised  had  the  seed  been 
as  warranted,  accordinj^-  to  the  circumstances  of  the  case.*^^ 
So,  "where  one  sells  and  warrants  a  thing  for  a  particular 
use,  upon  reasonable  j^jround  for  believing  that,  if  put  to  such 
use,  a  certain  loss  to  the  buyer  will  probably  result  if  the 
warranty  is  untrue,  *  *  *  the  seller  is,  under  the  war- 
ranty, chargeable  with  the  loss,  as  one  which  may  reasonably 
be  supposed  to  have  been  in  contemplation  of  the  parties  when 
making  the  contract/'  ^^* 

123  Wolcott  V.  Mount.  38  N.  J.  Law,  490.  20  Atti.  Rep.  42o.  affirm- 
ing Id.,  30  N.  J.  Law,  202,  13  Am.  lU>p.  4.38;  Wliito  v.  Mill«'r,  71  N. 
Y.  lis.  27  Am.  Rep.  13;  Id.,  78  \.  Y.  3'.):!,  34  Am.  Rep.  544.  See.  also, 
Passonser  v.  Thorburn.  34  N.  Y.  034.  OO  Am.  Deo.  7")3 ;  Van  Wyok  v. 
Allen,  Oi>  N.  Y.  01,  2.".  Am.  Rep.  130;  Kduar  v.  Breck  &  Sons  Corp.. 
172  Mas.'^.  .^>81,  52  N.  E.  10S3.  Cf.  Randall  v.  Rai)er,  El.,  Bl.  &  KL 
84.  27  Law  .T.  Q.  B.  200.  Contra.  Butler  v.  Moore,  08  Ga.  780,  45 
Am.  Rep.  508.  Where  a  druggist  sold  Paris  green  to  a  planter  for 
tbo  known  purpose  of  killing  cotton  worms,  but  the  article  was  not 
Paris  green,  and  failed  to  kill  the  worms  on  being  applied  to  the 
buyer's  crop,  the  measure  of  damages  for  the  breach  of  the  contract, 
if  it  resulted  in  the  loss  of  the  crop,  was  the  value  of  the  crop  as  it 
stood,  with  the  cost  of  the  article,  the  expense  of  applying  it,  and 
interest.  Jones  v.  George.  50  Tex.  149,  42  Am.  Rep.  OSd;  Id..  01 
Tex.  .345,  48  Am.  Rep.  280. 

Where  fruit  trees  were  bought  to  be  set  out  on  an  agreement  tliat 
they  should  be  of  certain  varieties,  or  others  equally  desirable,  and 
on  commencing  to  boar  they  were  found  to  be  of  inferior  variety, 
the  measure  of  damages  was  the  value  they  would  have  added  to 
the  premises  had  tliey  been  of  the  varieties  agreed.  Ileilman  v. 
Pruyor,  122  Mich.  301,  81  N.  W.  97.  80  Am.  St.  Rep.  570. 

124  Frohrelch  v.  Gammon.  2S  Minn.  470,  11  N.  W,  88,  per  Berry, 
J.    See,  also,  Wilson  v.  Reedy,  32  Minn.  256,  20  N.  W.  153. 


APl'KMJIX. 

THE    SALliS    ACT 


Following  the  example  of  Great  Britain,  which  in  IROr? 
enacted  the  Sale  of  Goods  Act/  several  states  of  the  Union 
have  already  enacted  the  so-called  Sales  Act.-  The  English 
act  was  drafted  by  Mr.  M.  D.  Chalmers,  who  prepared  the 
English  Bills  of  Exchange  Act,  which  is  the  foundation  of 
the  Negotiable  Instruments  Law,  now  in  force  in  a  large  part 
of  the  Union.  The  Sales  Act  is  based  on  the  English  Sale 
of  Goods  Act.  The  original  draft  was  prepared  in  1902-3 
by  Prof.  Samuel  Williston  of  Harvard  University,  at  the  re- 
<|uest  of  the  Commissioners  on  Uniform  State  Laws,  and 
was  presented  to  the  conference  of  the  Commissioners  and 
discussed  at  its  meeting  in  lOOt.  The  draft  was  then  re- 
committed to  the  Committee  on  Commercial  Law,  and  a  re- 
vised draft  was  presented  at  the  meeting  of  the  conference 
in  1905.  This  draft  included  for  the  first  time  a  number  of 
sections  on  the  transfer  of  property  by  means  of  document 
of  title,^  which  are  not  contained  in  the  English  act,  and  be- 
cause of  these  sections  it  was  thought  best  again  to  recommit 
the  draft.  At  the  meeting  of  the  conference  in  100(5  the  draft 
in  its  present  form  was  adopted  and  recommended  to  the 
Legislatures  of  the  several  states  for  passage.*  The  act  is 
in  the  main  declaratory  in  its  effect ;  but  it  makes  some 
changes,  and  necessarily  changes  the  law  in  some  jurisdictions 
on  points  concerning  which  a  conflict  of  laws  has  existed. 

1  St.  .'".■".  &  57  Vict.  c.  71  ;  p(^)st.  p.  413. 

2  Connecticut.  Pub.  Acts  1907.  c.  212;  New  Jersey,  Laws  ]f)07. 
c.  132;    Arizona.  Sess.  Laws  V.Ktl,  c.  1)9. 

3  Sections  27-40. 

*  For  tlie  liistory  of  the  act.  see  preface  in  pamphlet  containinir 
the  draft  printed  by  the  Commissioners.  This  pauiplilet  contains 
notes  to  the  several  sections,  prepared  by  Prof.  Williston.  The 
annotated  draft  Is  published  in  the  Report  of  the  Ameritav  Bar 
Association,  Vol.  30.  IWKJ.  part  2.  p.  343  et  seq. 

Tiff.Sales(2d  Eu.)  (381) 


382  APPEiNDIX.  (Pt.  1 


DRAFT  OF  AN.  ACT  TO  MAKE  UNIFORM  THE 
LAW  RELATING  TO  THE  SALE  OF  GOODS. 


PART  I. 

Formation  of  the  Contract. 

Section  1. — [Contracts  to  Sell  and  Sales.]  (1.)  A  con- 
tract to  sell  goods  is  a  contract  whereby  the  seller  agrees  to 
transfer  the  property  in  goods  to  the  buyer  for  a  consideration 
called  the  price. 

(2.)  A  sale  of  goods  is  an  agreement  whereby  the  seller 
transfers  the  property  in  goods  to  the  buyer  for  a  consideration 
called  the  price. 

(3.)  A  contract  to  sell  or  a  sale  may  be  absolute  or  condi- 
tional. 

(4.)  There  may  be  a  contract  to  sell  or  a  sale  between  one 
part  owner  and  another. 

Section  2. — [Capacity — Liability  for  Necessaries.]  Capac- 
ity to  buy  and  sell  is  regulated  by  the  general  law  concerning 
capacity  to  contract,  and  to  transfer  and  acquire  property. 

Where  necessaries  are  sold  and  delivered  to  an  infant,  or  to 
a  person  who  by  reason  of  mental  incapacity  or  drunkenness  is 
incompetent  to  contract,  he  must  pay  a  reasonable  price  there- 
for. 

Necessaries  in  this  section  mean  goods  suitable  to  the  condi- 
tion in  life  of  such  infant  or  other  person,  and  to  his  actual  re- 
quirements at  the  time  of  delivery. 

Formalities  of  the  Contract. 

Section  3. —  [Form  of  Contract  or  Sale.]  Subject  to  the 
provisions  of  this  act  and  of  any  statute  in  that  behalf,  a  con- 
tract to  sell  or  a  sale  may  be  made  in  writing  (either  with  or 
without  seal),  or  by  word  of  month,  or  partly  in  writing  and 


^^1    i)  THE   SALES   ACT.  3^.'^ 

])arily  by  word  of  iiioutli,  or  may  be  inferred  from  the  conduct 
of  the  parties. 

Section  4. —  [Statute  of  Frauds.]  (1.)  A  contract  to  sell  or 
a  sale  of  aii\'  goods  or  clio>c^  in  action  of  the  value  of  five  hun- 
dred dollars  or  upwards  shall  not  be  enforceable  by  action  un- 
less the  buyer  shall  accei)t  part  of  the  goods  or  choses  in  ac- 
tion so  contracted  to  be  sold  or  sold,  and  actually  receive  the 
same,  or  give  something  in  earnest  to  bind  the  contract,  or  in 
part  payment,  or  unless  some  note  or  memorandum  in  writ- 
ing of  the  contract  or  sale  be  signed  by  the  party  to  be  charged 
or  his  agent  in  that  behalf. 

(2.)  The  provisions  of  this  section  apply  to  every  such  con- 
tract or  sale,  notwithstanding  that  the  goods  may  be  intended 
to  be  delivered  at  some  future  time,  or  may  not  at  the  time  of 
such  contract  or  sale  be  actually  made,  procured,  or  pro^'ided. 
or  fit  or  ready  for  delivery,  or  some  act  may  be  requisite  for 
the  making  or  completing  thereof,  or  rendering  the  same  fit  for 
delivery;  but  if  the  goods  are  to  be  manufactured  by  the  sell- 
er especially  for  the  buyer  and  are  not  suitable  for  sale  to 
others  in  the  ordinary  course  of  the  seller's  business,  the  pro- 
visions of  this  section  shall  not  apply. 

(3.)  Three  is  an  acceptance  of  goods  within  the  meaning 
of  this  section  when  the  buyer,  either  before  or  after  delivery 
of  the  goods,  expresses  by  words  or  conduct  his  assent  to  be- 
coming the  owner  of  those  specific  goods. 

Subject-Matter  of  Contract. 

Section  5. — [Existing  and  Future  Goods.]  (1.")  The  goods 
which  form  the  subject  of  a  contract  to  sell  may  be  either  ex- 
isting goods,  owned  or  possessed  by  the  seller,  or  goods  to  be 
manufactured  or  acquired  by  the  seller  after  the  making  of 
the  contract  to  sell,  in  this  act  called  "future  goods." 

(2.)  There  may  be  a  contract  to  sell  goods,  the  acquisi- 
tion of  which  by  the  seller  depends  upon  a  contingency  which 
may  or  may  not  happen. 

(3.)  Where  the  parties  purport  to  effect  a  present  sale  of 
future  goods,  the  agreement  operates  as  a  contract  to  sell  the 
goods. 


384  APPENDIX.  (Pt.  1 

Section  6. — [Undivided  Shares.]  (1.)  There  may  be  a 
contract  to  sell  or  a  sale  of  an  undivided  share  of  goods.  If 
the  parties  intend  to  effect  a  present  sale,  the  buyer,  by  force 
of  the  agreement,  becomes  an  owner  in  common  with  the 
owner  or  owners  of  the  remaining  shares. 

(2.)  In  the  case  of  fungible  goods,  there  may  be  a  sale  of 
an  undivided  share  of  a  specific  mass,  though  the  seller  pur- 
ports to  sell  and  the  buyer  to  buy  a  definite  number,  weight, 
or  measure  of  the  goods  in  the  mass,  and  though  the  number, 
weight,  or  measure  of  the  goods  in  the  mass  is  undetermined. 
By  such  a  sale  the  buyer  becomes  owner  in  common  of  such  a 
share  of  the  mass  as  the  number,  weight,  or  measure  bought 
bears  to  the  number,  weight,  or  measure  of  the  mass.  If  the 
mass  contains  less  than  the  number,  weight,  or  measure 
bought,  the  buyer  becomes  the  owner  of  the  whole  mass  and 
the  seller  is  bound  to  make  good  the  deficiency  from  similar 
goods  unless  a  contrary  intent  appears. 

Section  7. — [Destruction  of  Goods  Sold.]  (1.)  Where  the 
parties  purport  to  sell  specific  goods,  and  the  goods  without 
the  knowledge  of  the  seller  have  wholly  perished  at  the  time 
when  the  agreement  is  made,  the  agreement  is  void. 

(2.)  Where  the  parties  purport  to  sell  specific  goods,  and 
the  goods  without  the  knowledge  of  the  seller  have  perished 
in  part  or  have  wholly  or  in  a  material  part  so  deteriorated  in 
quality  as  to  be  substantially  changed  in  character,  the  buyer 
may  at  his  option  treat  the  sale — 

(a.)   As  avoided,  or 

(b.)  As  transferring  the  property  in  all  of  the  existing  goods 
or  in  so  much  thereof  as  have  not  deteriorated,  and  as  binding 
the  buyer  to  pay  the  full  agreed  price  if  the  sale  was  indivisi- 
ble or  to  pay  the  agreed  price  for  the  goods  in  which  the  prop- 
erty passes  if  the  sale  was  divisible. 

Section  8. — [Destruction  of  Goods  Contracted  to  be  Sold.] 
(1.)  Where  there  is  a  contract  to  sell  specific  goods,  and  sub- 
sequently, but  before  the  risk  passes  to  the  buyer,  without  any 
fault  on  the  part  of  the  seller  or  the  buyer,  the  goods  wholly 
perish,  the  contract  is  thereby  avoided. 

(2.)  Where  there  is  a  contract  to  sell  specific  goods,  and  sub- 
sequently, but  before  the  risk  passes  to  the  buyer,  without  any 


8§  8-10)  THE   SALES  ACT.  385 

fault  of  the  seller  or  the  buyer,  part  of  the  goods  perish  or  the 
wliole  or  a  material  part  of  the  goods  so  deteriorate  in  quality 
as  to  be  substantially  changed  in  character,  the  buyer  may  at 
his  option  treat  the  contract — 

(a.)   As  avoided,  or 

(b.)  As  binding  the  seller  to  transfer  the  property  in  all  of 
the  existing  goods  or  in  so  much  thereof  as  have  not  deterio- 
rated, and  as  binding  the  buyer  to  pay  the  full  agreed  price  if 
the  contract  was  indivisible,  or  to  pay  the  agreed  price  for  so 
much  of  the  goods  as  the  seller,  by  the  buyer's  option,  is  bound 
to  transfer  if  the  contract  was  divisible. 


The  Price. 

Section  9. — [Definition  and  Ascertainment  of  Price.]  (1.) 
The  price  may  be  fixed  by  the  contract,  or  may  be  loft  to  be 
fixed  in  such  manner  as  may  be  agreed,  or  it  may  be  determined 
by  the  course  of  dealing  between  the  parties. 

(2.)  The  price  may  be  made  payable  in  any  personal  prop- 
erty. 

(3.)  Where  transferring  or  promising  to  transfer  any  in- 
terest in  real  estate  constitutes  the  whole  or  part  of  the  con- 
sideration for  transferring  or  for  promising  to  transfer  the 
property  in  goods,  this  act  shall  not  apply. 

(4.)  Where  the  price  is  not  determined  in  accordance  with 
the  foregoing  provisions  the  buyer  must  pay  a  reasonable  price. 
What  is  a  reasonable  price  is  a  question  of  fact  dependent  on 
the  circumstances  of  each  particular  case. 

Section  10. — [Sale  at  a  Valuation.]  (1.)  Where  there  is  a 
contract  to  sell  or  a  sale  of  goods  at  a  price  or  on  tcnns  to  be 
fixed  by  a  third  person,  and  such  third  person,  without  fault 
of  the  seller  or  the  buyer,  can  not  or  does  not  fix  the  price  or 
terms,  the  contract  or  the  sale  is  thereby  avoided;  but  if  the 
goods  or  any  part  thereof  have  been  delivered  to  and  appro- 
]iriated  by  the  buyer  he  must  pay  a  reasonable  price  therefor. 

(2.)   Where  such  third  person  is  prevented  from  fixing  the 
price  or  terms  by  fault  of  the  seller  or  the  buyer,  the  party 
not  in  fault  may  have  such  remedies  against  the  party  in  fault 
as  are  allowed  by  Parts  IV  and  V  of  this  act. 
Tiff'.Sat,es(2d  En.)— 2.' 


386  APPENDIX.  (Pt.  1 

Conditions  and  Warranties. 

Section  11.— [Effect  of  Conditions.]  (1.)  Where  the  obli- 
gation of  either  party  to  a  contract  to  sell  or  a  sale  is  subject 
to  any  condition  which  is  not  performed,  such  party  may  re- 
fuse to  proceed  with  the  contract  or  sale  or  he  may  waive  per- 
formance of  the  condition.  If  the  other  party  has  promised 
that  the  condition  should  happen  or  be  performed,  such  first- 
mentioned  party  may  also  treat  the  non-performance  of  the 
condition  as  a  breach  of  warranty. 

(2.)  Where  the  property  in  the  goods  has  not  passed,  the 
buyer  may  treat  the  fulfillment  by  the  seller  of  his  obligation 
to  furnish  goods  as  described  and  as  warranted  expressly  or 
by  implication  in  the  contract  to  sell  as  a  condition  of  the  ob- 
ligation of  the  buyer  to  perform  his  promise  to  accept  and  pay 
for  the  goods. 

Section  12. —  [Definition  of  Express  Warranty.]  Any  af- 
firmation of  fact  or  any  promise  by  the  seller  relating  to  the 
goods  is  an  express  warranty  if  the  natural  tendency  of  such 
affirmation  or  promise  is  to  induce  the  buyer  to  purchase  the 
goods,  and  if  the  buyer  purchases  the  goods  relying  thereon. 
No  affirmation  of  the  value  of  the  goods,  nor  any  statement 
purporting  to  be  a  statement  of  the  seller's  opinion  only  shall 
be  construed  as  a  warranty. 

Section  13. — [Implied  Warranties  of  Title.]  In  a  con- 
tract to  sell  or  a  sale,  unless  a  contrary  intention  appears, 
there  is — 

(1.)  An  implied  warranty  on  the  part  of  the  seller  that 
in  the  case  of  a  sale  he  has  a  right  to  sell  the  goods,  and 
that  in  the  case  of  a  contract  to  sell  he  will  have  a  right  to 
sell  the  goods  at  the  time  when  the  property  is  to  pass. 

(2.)  An  implied  warranty  that  the  buyer  shall  have  and 
enjoy  quiet  possession  of  the  goods  as  against  any  lawful 
claims  existing  at  the  time  of  sale. 

(3.)  An  implied  warranty  that  the  goods  shall  be  free  at 
the  time  of  the  sale  from  any  charge  or  encumbrance  in 
favor  of  any  third  person,  not  declared  or  known  to  the  buyer 
before  or  at  the  time  when  the  contract  or  sale  is  made. 


§-    l;i-ll»)  TIIK    SAI.KS    ACT.  387 

(4.)  This  section  shall  not,  however,  be  held  to  render  liable 
a  slicritT,  auctioneer,  inort.uagee,  or  other  person  professin;^ 
to  sell  by  virtue  of  authority  in  fact  or  law  goods  in  which 
a  third  person  has  a  lej^al  or  equitable  interest. 

Section  14. — [Implied  Warranty  in  Sale  by  Description.] 

Where  there  is  a  contract  to  sell  or  a  sale  of  goods  by  dcscriiJ- 
tion,  there  is  an  implied  warranty  that  the  goods  shall  cor- 
respond with  the  description  and  if  the  contract  or  sale  be 
by  sainple,  as  well  as  by  description,  it  is  not  suflicieiit  that 
the  bulk  of  the  goods  corresponds  with  the  sample  if  tlie 
goods  do  not  also  cnrrcsprmd  witli  the  description. 

Section  15. —  [Implied  Warranties  of  Quality.]  Subject 
to  the  provisions  of  this  act  and  of  any  statute  in  that  behalf, 
there  is  no  implied  warranty  or  condition  as  to  the  quality  or 
titncss  for  any  particular  purpose  of  goods  supplied  under  a 
contract  to  sell  or  a  sale,  except  as  follows : 

(1.)  Where  the  buyer,  expressly  or  by  implication,  makes 
known  to  the  seller  the  particular  purpose  for  which  tlie 
goods  are  required,  and  it  appears  that  the  buyer  relies  on 
the  seller's  skill  or  judgment  (whethe'*  lie  be  the  grower  or 
manufacturer  or  not),  there  is  an  implied  warranty  that  the 
goods  shall  be  reasonably  fit  for  such  purpose. 

(2.)  Where  the  goods  are  bought  by  description  from  a 
seller  who  deals  in  goods  of  that  description  (whether  he  be 
the  grower  or  manufacturer  or  not),  there  is  an  implied  war- 
ranty that  the  goods  shall  be  of  merchantable  quality. 

(3.)  If  the  buyer  has  examined  the  goods,  there  is  no  im- 
plied warranty  as  regards  defects  which  such  examination 
ought  to  have  revealed. 

(4.)  In  the  case  of  a  contract  to  sell  or  a  sale  of  a  speci- 
fied article  under  its  patent  or  other  trade  name,  there  is  no 
implied  warranty  as  to  its  fitness  for  any  particular  purpose. 

(.5.)  An  implied  warranty  or  condition  as  to  quality  or 
fitness  for  a  particular  purpose  may  be  annexed  by  the  usage 
of  trade. 

(6.)  An  express  warranty  or  condition  does  not  negative 
a  warranty  or  condition  implied  under  this  act  unless  incon- 
.•"•istent  therewith. 


388  APPENDIX.  (Pt.  2 

Sale  by  Sample. 

Section  16. — [Implied  Warranties  in  Sale  by  Sample.] 

In  the  case  of  a  contract  to  sell  or  a  sale  by  sample — 

(a.)  There  is  an  implied  warranty  that  the  bulk  shall  cor- 
respond with  the  sample  in  quality. 

(b.)  There  is  an  implied  warranty  that  the  buyer  shall 
have  a  reasonable  opportunity  of  comparing  the  bulk  with  the 
sample,  except  so  far  as  otherwise  provided  in  section  47  (3). 
(c.)  If  the  seller  is  a  dealer  in  goods  of  that  kind,  there 
is  an  implied  warranty  that  the  goods  shall  be  free  from  any 
defect,  rendering  them  unmerchantable,  which  would  not  be 
apparent  on  reasonable  examination  of  the  sample. 

PART  II. 
Transfer  of  Property  as  Between  Seller  and  Buyer. 

Section  17. — [No  Property  Passes  Until  Goods  are  Ascer- 
tained.] Where  there  is  a  contract  to  sell  unascertained 
goods  no  property  in  the  goods  is  transferred  to  the  buyer  un- 
less and  until  the  goods  are  ascertained,  but  property  in  an  un- 
divided share  of  ascertained  goods  may  be  transferred  as  pro- 
vided in  section  6. 

Section  18. — [Property  in  Specific  Goods  Passes  When 
Parties  so  Intend.]  (1.)  Where  there  is  a  contract  to  sell 
specific  or  ascertained  goods,  the  property  in  them  is  trans- 
ferred to  the  buyer  at  such  time  as  the  parties  to  the  contract 
intend  it  to  be  transferred. 

(2.)  For  the  purpose  of  ascertaining  the  intention  of  the 
parties,  regard  shall  be  had  to  the  terms  of  the  contract  the 
conduct  of  the  parties,  usages  of  trade,  and  the  circumstances 
of  the  case. 

Section  19. — [Rules  for  Ascertaining  Intention.]  Unless  a 
different  intention  appears,  the  following  are  rules  for  ascer- 
taining the  intention  of  the  parties  as  to  the  time  at  which 
the  property  in  the  goods  is  to  pass  to  the  buyer : 

Rule  1. — Where  there  is  an  unconditional  contract  to  sell 


§  19)  THE   SALES   ACT.  380 

specific  goods,  in  a  deliverable  state,  the  property  in  the  p^oods 
passes  to  the  buyer  when  the  contract  is  made,  and  it  is  im- 
material whether  the  time  of  payment,  or  the  time  of  delivery, 
or  both,  be  postponed. 

Rule  2. — Where  there  is  a  contract  to  sell  specific  goods  and 
the  seller  is  bound  to  do  something  to  the  goods,  for  the  pur- 
pose of  putting  them  into  a  deliverable  state,  the  property  does 
not  pass  until  such  thing  be  done. 

Rule  3. —  (1.)  When  goods  are  delivered  to  the  buyer  "on 
sale  or  return,"  or  on  other  terms  indicating  an  intention  to 
make  a  present  sale,  but  to  give  the  buyer  an  option  to  return 
the  goods  instead  of  paying  the  price,  the  property  passes  to 
the  buyer  on  delivery,  but  he  may  revest  the  property  in  the 
seller  by  returning  or  tendering  the  goods  within  the  time  fix- 
ed in  the  contract,  or,  if  no  time  has  been  fixed,  within  a  rea- 
sonable time. 

(2.)  When  goods  are  delivered  to  the  buyer  on  approval 
or  on  trial  or  on  satisfaction,  or  other  similar  terms,  the  prop- 
erty therein  passes  to  the  buyer — 

(a.)  When  he  signifies  his  approval  or  acceptance  to  the  sell- 
er or  does  any  other  act  adopting  the  transaction. 

(b.)  If  he  does  not  signify  this  approval  or  acceptance  to 
the  seller,  but  retains  the  goods  without  giving  notice  of  re- 
jection, then,  if  a  time  has  been  fixed  for  the  return  of  the 
goods,  on  the  expiration  of  such  time,  and,  if  no  time  has  been 
fixed,  on  the  expiration  of  a  reasonable  time.  When  is  a  rea- 
sonable time  is  a  question  of  fact. 

Rule  4. —  (1.)  Where  there  is  a  contract  to  sell  unascertain- 
ed or  future  goods  by  description,  and  goods  of  that  descrip- 
tion and  in  a  deliverable  state  are  unconditionally  appropriat- 
ed to  the  contract,  either  by  the  seller  with  the  assent  of  the 
buyer,  or  by  the  buyer  with  the  assent  of  the  seller,  the  prop- 
erty in  the  goods  thereupon  passes  to  the  buyer.  Such  assent 
may  be  expressed  or  implied,  and  may  be  given  either  before 
or  after  the  appropriation  is  made. 

(2.)  Where,  in  pursuance  of  a  contract  to  sell,  the  seller  de- 
livers the  goods  to  the  buyer,  or  to  a  carrier  or  other  bailee 
(whether  named  by  the  buyer  or  not)  for  the  purpose  of  trans- 
mission to  or  holding  for  the  buyer,  he  is  presumed  to  have 
unconditionally  appropriated  the  goods  to  the  contract,  except 


390  APrENDix.  (Pt.  2 

in  the  cases  provided  for  in  the  next  rule  and  in  section  20. 
This  presumption  is  apphcable,  although  by  the  terms  of  the 
contract  the  buyer  is  to  pay  the  price  before  receiving  dehv- 
ery  of  the  goods,  and  the  goods  are  marked  with  the  words 
Collect  on  Delivery  or  their  equivalents. 

Rule  5. — If  a  contract  to  sell  requires  the  seller  to  deliver 
the  goods  to  the  buyer,  or  at  a  particular  place,  or  to  pay  the 
freight  of  cost  of  transportation  to  the  buyer,  or  to  a  particu- 
lar place,  the  property  does  not  pass  until  the  goods  have  been 
delivered  to  the  buyer  or  reached  the  place  agreed  upon. 

Section  20. —  [Reservation  of  Right  of  Possession  or  Prop- 
erty When  Goods  are  Shipped.]  (1.)  Where  there  is  a  con- 
tract to  sell  specific  goods,  or  where  goods  are  subsequently 
appropriated  to  the  contract,  the  seller  may,  by  the  terms  of 
the  contract  or  appropriation,  reserve  the  right  of  possession 
or  property  in  the  goods  until  certain  conditions  have  been 
fulfilled.  The  right  of  possession  or  property  may  be  thus 
reserved  notwithstanding  the  delivery  of  the  goods  to  the  buy- 
er, or  to  a  carrier  or  other  bailee  for  the  purpose  of  transmis- 
sion to  the  buyer. 

(2.)  Where  goods  are  shipped,  and  by  the  bill  of  lading  the 
goods  are  deliverable  to  the  seller  or  his  agent,  or  to  the  order 
of  the  seller  or  of  his  agent,  the  seller  thereby  reserves  the  prop- 
erty in  the  goods.  But  if,  except  for  the  form  of  the  bill  of 
lading,  the  property  would  have  passed  to  the  buyer  on  ship- 
ment of  the  goods,  the  seller's  property  in  the  goods  shall  be 
deemed  to  be  only  for  the  purpose  of  securing  performance 
by  the  buyer  of  his  obligations  under  the  contract. 

(3.)  Where  goods  are  shipped,  and  by  the  bill  of  lading  the 
goods  are  deliverable  to  the  order  of  the  buyer  or  of  his  agent, 
but  possession  of  the  bill  of  lading  is  retained  by  the  seller 
or  his  agent,  the  seller  thereby  reserves  a  right  to  the  pos- 
session of  the  goods,  as  against  the  buyer. 

(4.)  Where  the  seller  of  goods  draws  on  the  buyer  for  the 
price  and  transmits  the  bill  of  exchange  and  bill  of  lading 
together  to  the  buyer  to  secure  acceptance  or  payment  of  the 
bill  of  exchange,  the  buyer  is  bound  to  return  the  bill  of  lad- 
ing if  he  does  not  honor  the  bill  of  exchange,  and  if  he  wrong- 
fully retains  the  bill  of  lading  he  acquires  no  added  right  there- 


>5>?  21-22)  THE    SAF.I-S    ACT.  301 

l)y.  If,  however,  the  bill  of  ladMij^  provides  tliat  the  goods  are 
deliverable  to  the  buyer  or  to  the  order  of  the  buyer,  or  is  en- 
dorsed in  blank,  or  to  the  buyer  by  the  consignee  named  there- 
in, one  who  purchases  in  good  faith,  for  value,  the  bill  of 
lading,  or  goods  from  the  buyer  will  obtain  the  property  in 
the  goods,  although  the  bill  of  exchange  has  not  been  honored, 
provided  that  such  purchaser  has  received  delivery  of  the  bill 
of  lading  indorsed  by  the  consignee  named  therein,  or  of  the 
goods,  without  notice  of  the  facts  making  the  transfer  wrong- 
ful. 

Section  21. —  [Sale  by  Auction.]  In  the  case  of  a  sale  by 
auction — 

(1.)  Where  goods  are  put  up  for  sale  by  auction  in  lots, 
each  lot  is  the  subject  of  a  separate  contract  of  sale. 

(2.)  A  sale  by  auction  is  complete  when  the  auctioneer  an- 
nounces its  completion  by  the  fall  of  the  hammer,  or  in  other 
customary  manner.  Until  such  announcement  is  made  any 
bidder  may  retract  his  bid ;  and  the  auctioneer  may  withdraw 
the  goods  from  sale  unless  the  auction  has  been  announced  to 
be  without  reserve. 

(3.)  A  right  to  bid  may  be  reserved  expressly  by  or  on  be- 
half of  the  seller. 

(4.)  Where  notice  has  not  been  given  that  a  sale  by  auction 
is  subject  to  a  right  to  bid  on  behalf  of  the  seller,  it  shall  not 
be  lawful  for  the  seller  to  bid  himself  or  to  employ  or  induce 
any  jierson  to  bid  at  such  sale  on  his  behalf,  or  for  the  auc- 
tioneer to  employ  or  induce  any  person  to  bid  at  such  sale  on 
behalf  of  the  seller  or  knowingly  to  take  any  bid  from  the 
seller  or  any  person  employed  by  him.  Any  sale  contraven- 
ing this  rule  may  be  treated  as  fraudulent  by  the  buyer. 

Section  22. —  [Risk  of  Loss.]  Unless  otherwise  agreed,  the 
goods  remain  at  the  seller's  risk  until  the  propertv  therein  is 
transferred  to  the  buyer,  but  when  the  property  therein  is  trans- 
ferred to  the  buyer  the  goods  are  at  the  buyer's  risk  whether 
delivery  has  been  made  or  not,  except  that — 

(a.)  Where  delivery  of  the  goods  has  been  made  to  the  buy- 
er, or  to  a  bailee  for  the  buyer,  in  pursuance  of  the  contract, 
and  the  property  in  the  goods  has  been  retained  by  the  seller 
merely  to  secure  performance  by  the  buyer  of  his  obligations 


392  APPENDIX.  (Pt.  2 

under  the  contract,  the  goods  are  at  the  buyer's  risk  from  the 
time  of  such  deUvery. 

(b.)  Where  delivery  has  been  delayed  through  the  fault 
of  either  buyer  or  seller  the  goods  are  at  the  risk  of  the  party 
in  fault  as  regards  any  loss  which  might  not  have  occurred 
but  for  such  fault. 


Transfer  of  Title. 

Section  23.— [Sale  by  a  Person  Not  the  Owner.]  (1.) 
Subject  to  the  provisions  of  this  act,  where  goods  are  sold  by 
a  person  who  is  not  the  owner  thereof,  and  who  does  not  sell 
them  under  the  authority  or  with  the  consent  of  the  owner, 
the  buyer  acquires  no  better  title  to  the  goods  than  the  seller 
had,  unless  the  owner  of  the  goods  is  by  his  conduct  precluded 
from  denying  the  seller's  authority  to  sell. 

(2.)  Nothing  in  this  act,  however,  shall  affect — 

(a.)  The  provisions  of  any  factors'  acts,  recording  acts,  or 
any  enactment  enabling  the  apparent  owner  of  goods  to  dis- 
pose of  them  as  if  he  were  the  true  owner  thereof. 

(b.)  The  validity  of  any  contract  to  sell  or  sale  under  any 
special  common-law  or  statutory  power  of  sale  or  under  the 
order  of  a  court  of  competent  jurisdiction. 

Section  24. — [Sale  by  One   Having  a  Voidable  Title.] 

Where  the  seller  of  goods  has  a  voidable  title  thereto,  but  his 
title  has  not  been  avoided  at  the  time  of  the  sale,  the  buyer  ac- 
quires a  good  title  to  the  goods,  provided  he  buys  them  in  good 
faith,  for  value,  and  without  notice  of  the  seller's  defect  of  title. 

Section  25. — [Sale  by  Seller  in  Possession  of  Goods  Al- 
ready Sold.]  Where  a  person  having  sold  goods  continues  in 
possession  of  the  goods,  or  of  negotiable  documents  of  title  to 
the  goods,  the  delivery  or  transfer  by  that  person,  or  by  an 
agent  acting  for  him,  of  the  goods  or  documents  of  title  under 
any  sale,  pledge,  or  other  disposition  thereof,  to  any  person  re- 
ceiving and  paying  value  for  the  same  in  good  faith  and  without 
notice  of  the  previous  sale,  shall  have  the  same  effect  as  if  the 
person  making  the  delivery  or  transfer  were  expressly  author- 
ized by  the  owner  of  the  goods  to  make  the  same. 


,^g  26-20)  THE    SAI.KS    ACT.  30P. 

Section  26. —  [Creditors'  Rights  Against  Sold  Goods  in 
Seller's  Possession.]  Where  a  person  having  sold  goods  con- 
tinues in  possession  of  the  goods,  or  of  negotiable  documents 
of  title  to  the  goods,  and  such  retention  of  possession  is  fraudu- 
lent in  fact  or  is  deemed  fraudulent  under  any  rule  of  law,  a 
creditor  or  creditors  of  tlie  seller  may  treat  the  sale  as  void. 

Section  27. —  [Definition  of  Negotiable  Document  of  Ti- 
tle.] .\  document  of  title  in  which  it  is  stated  that  the  goods 
referred  to  therein  will  be  delivered  to  the  bearer,  or  to  the 
order  of  any  person  named  in  such  document,  is  a  negotiable 
document  of  title. 

Section  28. —  [Negotiation  of  Negotiable  Documents  by 
Delivery.]  A  negotiable  document  of  title  may  be  negotiated 
by  delivery — 

la.)  Where  by  the  terms  of  the  document  the  carrier,  ware- 
houseman, or  other  bailee  issuing  the  same  undertakes  to  de- 
liver the  goods  to  the  bearer,  or 

(b.)  Where  by  the  terms  of  the  document  the  carrier,  ware- 
houseman, or  other  bailee  issuing  the  same  undertakes  to  de- 
liver the  goods  to  the  order  of  a  specified  person,  and  such  per- 
son or  a  subsequent  indorsee  of  the  document  has  indorsed  it  in 
blank  or  to  bearer. 

Where  by  the  terms  of  a  negotiable  document  of  title  the 
goods  are  deliverable  to  bearer  or  where  a  negotiable  document 
of  title  has  been  indorsed  in  blank  or  to  bearer,  any  holder  may 
indorse  the  same  to  himself  or  to  any  other  specified  person, 
and  in  such  case  the  document  shall  thereafter  be  negotiated 
only  by  the  indorsement  of  such  indorsee. 

Section  29. —  [Negotiation  of  Negotiable  Documents  by 
Indorsement.]  A  negotiable  document  of  title  ma\-  l.)e  ne- 
gotiated by  the  indorsement  of  the  person  to  whose  order  the 
goods  are  by  the  terms  of  the  document  deliverable.  Such  in- 
dorsement may  be  in  blank,  to  bearer,  or  to  a  specified  person. 
If  indorsed  to  a  specified  person  it  may  be  again  negotiated  by 
the  indorsement  of  such  person  in  blank,  to  bearer  or  to  another 
specified  person.  Subsequent  negotiation  may  be  made  in  like 
Mianner. 


394  APPENDIX.  (Pt.  2 

Section  30. — [Negotiable  Documents  of  Title  Marked 
"Not  Negotiable."]  If  a  document  of  title  which  contains  an 
undertaking  by  a  carrier,  warehouseman,  or  other  bailee  to  de- 
liver the  goods  to  the  bearer,  to  a  specified  person  or  order,  or 
to  the  order  of  a  specified  person,  or  which  contains  words  of 
like  import,  has  placed  upon  it  the  words  "not  negotiable," 
''non-negotiable,"  or  the  like,  such  a  document  may  neverthe- 
less be  negotiated  by  the  holder  and  is  a  negotiable  document  of 
title  within  the  meaning  of  this  act.  But  nothing  in  this  act 
contained  shall  be  construed  as  limiting  or  defining  the  effect 
upon  the  obligations  of  the  carrier,  warehouseman,  or  other 
bailee  issuing  a  document  of  title  of  placing  thereon  the  words 
"not  negotiable,"  "non-negotiable,"  or  the  like. 

Section  31. — [Transfer  of  Non-Negotiable  Documents.] 
A  document  of  title  which  is  not  in  such  form  that  it  can  be 
negotiated  by  delivery  may  be  transferred  by  the  holder  by  de- 
livery to  a  purchaser  or  donee.  A  non-negotiable  receipt  can 
not  be  negotiated  and  the  indorsement  of  such  a  receipt  gives 
the  transferee  no  additional  right. 

Section    32. — [Who   may    Negotiate    a    Document.]      A 

negotiable  document  of  title  may  be  negotiated — 

(a.)  By  the  owner  thereof,  or 

(b.)  By  any  person  to  whom  the  possession  or  custody  of  the 
document  has  been  entrusted  by  the  owner,  if,  by  the  terms  of 
the  document,  the  bailee  issuing  the  document  undertakes  to 
deliver  the  goods  to  the  order  of  the  person  to  whom  the  pos- 
session or  custody  of  the  document  has  been  entrusted,  or  if  at 
the  time  of  such  entrusting  the  document  is  in  such  form  that 
it  may  be  negotiated  by  delivery. 

Section  33. —  [Rights  of  Person  to  Whom  Document 
has  been  Negotiated.]  A  person  to  whom  a  negotiable  docu- 
ment of  title  has  been  duly  negotiated  acquires  thereby. 

(a.)  Such  title  to  the  goods  as  the  person  negotiating  the 
document  to  him  had  or  had  ability  to  convey  to  a  purchaser  in 
good  faith  for  value,  and  also  such  title  to  the  goods  as  the 
person  to  whose  order  the  goods  were  to  be  delivered  by  the 
terms  of  the  document  had  or  had  ability  to  convey  to  a  pur- 
chaser in  good  faith  for  value,  and 

(h.)  The  direct  obligation  of  the  bailee  issuing  the  document 


§§34-30)  Tin:   SAM>    ArT.  ^rio 

to  hold  possession  of  the  goods  for  him  according  to  the  terms 
of  the  docnmcnt  as  fnlly  as  if  such  bailee  had  contracted  di- 
rectly with  him. 

Section  34. —  [Rights  of  Person  to  Whom  Document  has 
been  Transferred.]  A  person  to  whom  a  document  of  title 
has  been  transferred,  hut  not  negotiated,  acquires  therchy,  as 
against  the  transferor,  the  title  to  the  goods,  subject  to  the 
terms  of  any  agreement  with  the  transferor. 

If  the  document  is  non-negotiable  such  person  also  acquires 
the  right  to  notify  the  bailee  who  issued  the  document  of  the 
transfer  thereof,  and  thereby  to  acquire  the  direct  obligation 
of  such  bailee  to  hold  possession  of  the  goods  for  him  according 
to  the  terms  of  the  document. 

Prior  to  the  notification  of  such  bailee  by  the  transferor  or 
transferee  of  a  non-negotiable  document  of  title,  the  title  of  the 
transferee  to  the  goods  and  the  right  to  acf|uire  the  obligation  of 
such  bailee  may  be  defeated  by  the  levy  of  an  attachment  or 
execution  upon  the  goods  by  a  creditor  of  the  transferor,  or  by 
a  notification  to  such  bailee  by  the  transferor  or  a  subsequent 
purchaser  from  the  transferor  of  a  subsequent  sale  of  the  goods 
by  the  transferor. 

Section  35. — [Transfer  of  Negotiable  Document  Without 
Indorsement.]  Where  a  negotiable  document  of  title  is  trans- 
ferred for  value  by  delivery,  and  the  indorsement  of  the  trans- 
feror is  essential  for  negotiation,  the  transferee  acquires  a 
right  against  the  transferor  to  compel  him  to  indorse  the  docu- 
ment unless  a  contrary  intention  appears.  The  negotiation 
shall  take  effect  as  of  the  time  when  the  indorsement  is  actual- 
ly made. 

Section  36. —  [Warranties  on  Sale  of  Document.]  A  per- 
son who  for  value  negotiates  or  transfers  a  document  of  title 
by  indorsement  or  delivery,  including  one  who  assigns  for  value 
a  claim  secured  by  a  document  of  title,  unless  a  contrary  inten- 
tion appears,  warrants : 

(a.)  That  the  document  is  genuine. 

(b.)  That  he  has  a  legal  right  to  negotiate  or  transfer  it. 

(c.)  That  he  has  knowledge  of  no  fact  which  would  impair 
the  validity  or  worth  of  the  document,  and 

(d.)  That  he  has  a  right  to  transfer  the  title  to  the  goods 


396  APPENDIX.  (Pt.  2 

and  that  the  goods  are  merchantable  or  fit  for  a  particular  pur- 
pose, whenever  such  warranties  would  have  been  implied  if 
the  contract  of  the  parties  had  been  to  transfer  without  a  docu- 
ment of  title  the  goods  represented  thereby. 

Section  37. —  [Indorser  not  a  Guarantor.]  The  indorse- 
ment of  a  document  of  title  shall  not  make  the  indorser  liable 
for  any  failure  on  the  part  of  the  bailee  who  issued  the  docu- 
ment or  previous  indorsers  thereof  to  fulfill  their  respective 
obligations. 

Section  38. — [When  Negotiation  Not  Impaired  by  Fraud, 
Mistake,  or  Duress.]  The  validity  of  the  negotiation  of  a 
negotiable  document  of  title  is  not  impaired  by  the  fact  that 
the  negotiation  was  a  breach  of  duty  on  the  part  of  the  person 
making  the  negotiation,  or  by  the  fact  that  the  owner  of  the 
document  was  induced  by  fraud,  mistake,  or  duress  to  entrust 
the  possession  or  custody  thereof  to  such  person,  if  the  person 
to  whom  the  document  was  negotiated  or  a  person  to  whom  the 
document  was  subsequently  negotiated  paid  value  therefor, 
without  notice  of  the  breach  of  duty,  or  fraud,  mistake,  or 
duress. 

Section  39. — [Attachment  or  Levy  upon  Goods  for  Which 
a  Negotiable  Document  has  been  Issued.]  If  goods  are  de- 
livered to  a  bailee  by  the  owner  or  by  a  person  whose  act  in 
conveying  the  title  to  them  to  a  purchaser  in  good  faith  for  val- 
ue would  bind  the  owner  and  a  negotiable  document  of  title 
is  issued  for  them  they  can  not  thereafter,  while  in  the  posses- 
sion of  such  bailee,  be  attached  by  garnishment  or  otherwise 
or  be  levied  upon  under  an  execution  unless  the  document  be 
first  surrendered  to  the  bailee  or  its  negotiation  enjoined.  The 
bailee  shall  in  no  case  be  compelled  to  deliver  up  the  actual 
possession  of  the  goods  until  the  document  is  surrendered  to 
him  or  impounded  by  the  court. 

Section  40. — [Creditors'  Remedies  to  Reach  Negotiable 
Documents.]  A  creditor  whose  debtor  is  the  owner  of  a  ne- 
gotiable -document  of  title  shall  be  entitled  to  such  aid  from 
courts  of  appropriate  jurisdiction  by  injunction  and  otherwise 
in  attaching  such  document  or  in  satisfying  the  claim  by  means 


g§  41-4.^)  THE  SALES  ACT.  SOT 

thereof  as  is  allowed  at  law  or  in  Cijuity  in  regard  to  property 
which  can  not  readily  be  attached  or  levied  upon  by  ordinary 
legal  process. 

PART  III. 

Performance  of  the  Contract. 

Section  41. — [Seller  must  Deliver  and  Buyer  Accept} 
Goods.]  It  is  the  duty  of  the  seller  to  deliver  the  jii^oods,  and 
of  the  buyer  to  accept  and  pay  for  them,  in  accordance  with  the 
terms  of  the  contract  to  sell  or  sale. 

Section  42. —  [Delivery  and  Payment  are  Concurrent  Con- 
ditions.] Unless  otherwise  agreed,  delivery  of  the  goods  and 
payment  of  the  price  are  concurrent  conditions,  that  is  to  say, 
the  seller  must  be  ready  and  willing  to  give  possession  of  the 
goods  to  the  buyer  in  exchange  for  the  price,  and  the  buyer 
must  be  ready  and  willing  to  pay  the  price  in  exchange  for  pos- 
session of  the  goods. 

Section  43. —  [Place,  Time,  and  Manner  of  Delivery.] 
(1.)  Whether  it  is  for  the  buyer  to  take  possession  of  the  goods 
or  for  the  seller  to  send  them  to  the  buyer,  is  a  question  de- 
pending in  each  case  on  the  contract,  express  or  implied,  be- 
tween the  parties.  Apart  from  any  such  contract,  express  or 
implied,  or  usage  of  trade  to  the  contrary,  the  place  of  delivery 
is  the  seller's  place  of  business,  if  he  have  one,  and  if  not  his 
residence;  but  in  case  of  a  contract  to  sell  or  a  sale  of  specific 
goods,  which  to  the  knowledge  of  the  parties  when  the  contract 
or  the  sale  was  made  were  in  some  other  place,  then  that  place 
is  the  place  of  delivery. 

(2.)  Where  by  a  contract  to  sell  or  a  sale  the  seller  is  bound 
to  send  the  goods  to  the  buyer,  but  no  time  for  sending  them 
is  fixed,  the  seller  is  bound  to  send  them  within  a  reasonable 
time. 

(3.)  Where  the  goods  at  the  time  of  sale  are  in  the  possession 
of  a  third  person,  the  seller  has  not  fulfilled  his  obligation  to 
deliver  to  the  buyer  unless  and  until  such  third  person  ac- 
knowledges to  the  buyer  that  he  holds  the  goods  on  the  buy- 
er's behalf;  but  as  against  all  others  than  the  seller  the  buyer 
shall  be  regarded  as  having  received  delivery  from  the  time 


398  APi'EXDIX.  (Pt.  S 

when  such  third  person  first  has  notice  of  the  sale.  Nothing- 
in  this  section,  however,  shall  affect  the  operation  of  the  is- 
sue or  transfer  of  any  document  of  title  to  goods. 

(4.)  Demand  or  tender  of  delivery  may  be  treated  as  inef- 
fectual unless  made  at  a  reasonable  hour.  What  is  a  reason- 
able hour  is  a  question  of  fact. 

(5.)  Unless  otherwise  agreed,  the  expenses  of  and  incidental 
to  putting  the  goods  into  a  deliverable  state  must  be  borne  by 
the  seller. 

Section  44. —  [Delivery  of  Wrong  Quantity.]  (1.)  Where 
the  seller  delivers  to  the  buyer  a  quantity  of  goods  less  than 
he  contracted  to  sell,  the  buyer  may  reject  them,  but  if  the 
buyer  accepts  or  retains  the  goods  so  delivered,  knowing  that 
the  seller  is  not  going  to  perform  the  contract  in  full,  he  must 
pay  for  them  at  the  contract  rate.  If,  however,  the  buyer  has 
used  or  disposed  of  the  goods  delivered  before  he  knows  that 
the  seller  is  not  going  to  perform  his  contract  in  full,  the  buyer 
shall  not  be  liable  for  more  than  the  fair  value  to  him  of  the 
goods  so  received. 

(2.)  Where  the  seller  delivers  to  the  buyer  a  quantity  of 
goods  larger  than  he  contracted  to  sell,  the  buyer  may  accept 
the  goods  included  in  the  contract  and  reject  the  rest,  or  he 
may  reject  the  whole.  If  the  buyer  accepts  the  whole  of  the 
goods  so  delivered  he  must  pay  for  them  at  the  contract  rate. 

(3.)  Where  the  seller  delivers  to  the  buyer  the  goods  he  con- 
tracted to  sell  mixed  with  goods  of  a  different  description  not 
included  in  the  contract,  the  buyer  may  accept  the  goods  which 
are  in  accordance  with  the  contract  and  reject  the  rest,  or  he 
may  reject  the  whole. 

(4.)  The  provisions  of  this  section  are  subject  to  any  usage 
of  trade,  special  agreement,  or  course  of  dealing  between  the 
parties. 

Section  45. — [Delivery  in  Instalments.]  (1.)  Unless 
otherwise  agreed,  the  buyer  of  goods  is  not  bound  to  accept 
delivery  thereof  by  instalments. 

(2.)  Where  there  is  a  contract  to  sell  goods  to  be  delivered 
by  stated  instalments,  which  are  to  be  separately  paid  for,  and 
the  seller  makes  defective  deliveries  in  respect  of  one  or  more 
instalments,  or  the  buyer  neglects  or  refuses  to  take  delivery 


§^  4G-47)  Tin:  ^ali:s  act.  ;vj!> 

of  or  pay  for  one  or  more  instalments,  it  dcpciuls  in  each  case 
"11  the  terms  of  the  contract  and  the  circumstances  of  the  case, 
whether  the  hrcach  of  contract  is  so  material  as  to  justify  the 
injured  party  in  refusings  to  proceed  further  and  suing  for  dam- 
ages for  breach  of  the  entire  contract,  or  whether  the  breach 
is  severable,  givinq-  rise  to  a  claim  for  compensation,  but  not 
to  a  right  to  treat  the  whole  contract  as  broken. 

Section  46. —  [Delivery  to  a  Carrier  on  Behalf  of  the  Buy- 
er.] (1.)  Where,  in  pursuiince  of  a  contract  to  sell  or  a  sale, 
the  seller  is  authorized  or  required  to  send  the  goods  to  the 
buyer,  delivery  of  the  goods  to  a  carrier,  whether  named  by  the 
buyer  or  not,  for  the  purpose  of  transmission  to  the  buyer  is 
deemed  to  be  a  delivery  of  the  goods  to  the  l)u\er,  except  in 
the  cases  provided  for  in  section  10.  rule  o,  or  unless  a  contrary 
intent  appears. 

(2.)  Unless  otherwise  authorized  by  the  buyer,  the  seller 
must  make  such  contract  with  the  carrier  on  behalf  of  the  buy- 
er as  may  be  reasonable,  having  regard  to  the  nature  of  the 
goods  and  the  other  circumstances  of  the  case.  If  the  seller 
omit  to  do  so,  and  the  goods  are  lost  or  damaged  in  course  of 
transit,  the  buyer  may  decline  to  treat  the  delivery  to  the  car- 
rier as  a  delivery  to  himself,  or  may  hold  the  seller  responsible 
in  damages. 

(3.)  Unless  otherwise  agreed,  where  goods  are  sent  by  the 
seller  to  the  buyer  under  circumstances  in  which  the  seller 
l<nows  or  ought  to  know  that  it  is  usual  to  insure,  the  seller 
must  give  such  notice  to  the  buyer  as  may  enable  him  to  insure 
them  during  their  transit,  and,  if  the  seller  fails  to  do  so,  the 
goods  shall  be  deemed  to  be  at  his  risk  during  such  transit. 

Section  47. —  [Right  to  Examine  the  Goods.]  (1.)  Where 
.i,^oods  are  delivered  to  the  buyer,  which  he  has  not  previously 
examined,  he  is  not  deemed  to  have  accepted  them  unless  and 
until  he  has  had  a  reasonable  opportunity  of  examining  them 
for  the  purpose  of  ascertaining  whether  they  are  in  conformity 
with  the  contract. 

(2.)  Unless  otherwise  agreed,  when  the  seller  tenders  delivery 
of  goods  to  the  buyer,  he  is  bound,  on  request,  to  afford  the 
buyer  a  reasonable  opportunitv  of  ex.'iniininc:-  the  floods  for  the 


400  APPENDIX.  (Pt.  3 

purpose  of  ascertaining  whether  they  are  in  conformity  with 
the  contract. 

(3.)  Where  goods  are  delivered  to  a  carrier  by  the  seller,  in 
accordance  with  an  order  from  or  agreement  with  the  buyer, 
upon  the  terms  that  the  goods  shall  not  be  delivered  by  the 
carrier  to  the  buyer  until  he  has  paid  the  price,  whether  such 
terms  are  indicated  by  marking  the  goods  with  the  words  Col- 
lect on  Delivery,  or  otherwise,  the  buyer  is  not  entitled  to  ex- 
amine the  goods  before  payment  of  the  price  in  the  absence  of 
agreement  permitting  such  examination. 

Section  48. — [What  Constitutes  Acceptance.]  The  buyer 
is  deemed  to  have  accepted  the  goods  when  he  intimates  to  the 
seller  that  he  has  accepted  them,  or  when  the  goods  have  been 
delivered  to  him,  and  he  does  any  act  in  relation  to  them  which 
is  inconsistent  with  the  ownership  of  the  seller,  or  when,  after 
the  lapse  of  a  reasonable  time,  he  retains  the  goods  without 
intimating  to  the  seller  that  he  has  rejected  them. 

Section  49. — [Acceptance  does  Not  Bar  Action  for  Dam- 
ages.] In  the  absence  of  express  or  implied  agreement  of  the 
parties,  acceptance  of  the  goods  by  the  buyer  shall  not  discharge 
the  seller  from  liability  in  damages  or  other  legal  remedy  for 
breach  of  any  promise  or  warranty  in  the  contract  to  sell  or 
the  sale.  But,  if,  after  acceptance  of  the  goods,  the  buyer  fail 
to  give  notice  to  the  seller  of  the  breach  of  any  promise  or 
warranty  within  a  reasonable  time  after  the  buyer  knows,  or 
ought  to  know  of  such  breach,  the  seller  shall  not  be  liable 
therefor. 

Section  50. —  [Buyer  is  Not  Bound  to  Return  Goods 
Wrongly  Delivered.]  Unless  otherwise  agreed,  where  goods 
are  delivered  to  the  bu3^er,  and  he  refuses  to  accept  them,  hav- 
ing the  right  so  to  do,  he  is  not  bound  to  return  them  to  the 
seller,  but  it  is  sufficient  if  he  notifies  the  seller  that  he  refuses 
to  accept  them. 

Section  51. — [Buyer's  Liability  for  Failing  to  Accept  De- 
livery.] When  the  seller  is  ready  and  willing  to  deUver  the 
goods,  and  requests  the  buyer  to  take  delivery,  and  the  buyer 
does  not  within  a  reasonable  time  after  such  request  take  deliv- 
ery of  the  goods,  he  is  liable  to  the  seller  for  any  loss  occasion- 


§§  52-53)  TIIK    RALES    ACT.  401 

cd  by  his  neglect  or  refusal  to  take  delivery,  and  also  for  a  rea- 
sonable charge  for  the  care  and  custody  of  the  goods.  If  the 
neglect  or  refusal  of  the  buyer  to  take  delivery  amounts  to  a 
repudiation  or  breach  of  the  entire  contract,  the  seller  shall 
have  the  rights  against  the  goods  and  on  the  contract  herein- 
after provided  in  favor  of  the  seller  when  the  buyer  is  in  de- 
fault 

PART  IV. 

Rij^hts  of  Unf^aid  Seller  Against  the  Goods. 

Section  52.— [Definition  of  Unpaid  Seller.]  (1.)  The 
seller  of  goods  is  deemed  to  be  an  unpaid  seller  within  the 
meaning  of  this  act — 

(a.)  When  the  whole  of  the  price  has  not  been  paid  or  ten- 
dered. 

(b.)  When  a  bill  of  exchange  or  other  negotiable  instrument 
has  been  received  as  conditional  payment,  and  the  condition 
on  which  it  was  received  has  been  broken  by  reason  of  the  dis- 
honor of  the  instrument,  the  insolvency  of  the  buyer,  or  other- 
wise. 

(2.)  In  this  part  of  this  act  the  term  "seller"  includes  an  agent 
of  the  seller  to  whom  the  bill  of  lading  has  been  endorsed, 
or  a  consignor  or  agent  who  has  himself  paid,  or  is  directly 
responsible  for,  the  price,  or  any  other  person  who  is  in  the 
position  of  a  seller. 

Section  53. —  [Remedies  of  an  Unpaid  Seller.]  (1.)  Sub- 
ject to  the  provisions  of  tliis  act,  notwithstanding  that  the 
property  in  the  goods  may  have  passed  to  the  buyer,  the  unpaid 
seller  of  goods,  as  such,  has — 

(a.)  A  lien  on  the  goods  or  right  to  retain  them  for  the  price 
while  he  is  in  possession  of  them. 

(b.)  In  case  of  the  insolvency  of  the  buyer,  a  right  of  stopping 
the  goods  in  transitu  after  he  has  parted  with  the  possession 
of  them. 

(c.)  A  right  of  resale  as  limited  by  this  act. 

(d.)  A  right  to  rescind  the  sale  as  limited  by  this  act. 

(2.)  Where  the  property  in  goods  has  not  p;issed  to  the  buyer, 
the  unpaid  seller  has.  in  addition  to  his  other  remedies,  a  right 
'rirF.SAT.Ksf2n  En.)— 2n 


402  APPENDIX.  (Pt.  4 

of  withholding  delivery  similar  to  and  co-extensive  with  his 
rights  of  lien  and  stoppage  "in  transitu"  where  the  property 
has  passed  to  buyer. 

Unpaid  Seller^s  Lien. 

Section  54. — [When  Right  of  Lien  may  be  Exercised.] 

(1.)  Subject  to  the  provisions  of  this  act,  the  unpaid  seller  of 
goods  who  is  in  possession  of  them  is  entitled  to  retain  pos- 
session of  them  until  payment  or  tender  of  the  price  in  the  fol- 
lowing cases,  namely : 

(a.)  Where  the  goods  have  been  sold  without  any  stipula- 
tion as  to  credit. 

(b.)  Where  the  goods  have  been  sold  on  credit,  but  the  term 
of  credit  has  expired. 

(c.)  Where  the  buyer  becomes  insolvent. 

(2.)  The  seller  may  exercise  his  right  of  lien  notwithstanding 
that  he  is  in  possession  of  the  goods  as  agent  or  bailee  for  the 
buyer. 

Section  55. —  [Lien  After  Part  Delivery.]  Where  an  un- 
paid seller  has  made  part  delivery  of  the  goods,  he  may  ex- 
ercise his  right  of  lien  on  the  remainder,  unless  such  part  de- 
livery has  been  made  under  such  circumstances  as  to  show  an 
intent  to  waive  the  lien  or  right  of  retention. 

Section  56. — [When  Lien  is  Lost.]  (1.)  The  unpaid  sell- 
er of  goods  loses  his  lien  thereon — 

(a.)  When  he  delivers  the  goods  to  a  carrier  or  other  bailee 
for  the  purpose  of  transmission  to  the  buyer  without  reserving 
the  property  in  the  goods  or  the  right  to  the  possession  thereof. 

(b.)  When  the  buyer  or  his  agent  lawfully  obtains  possession 
of  the  goods. 

(c.)  By  waiver  thereof. 

(2.)  The  unpaid  seller  of  goods,  having  a  lien  thereon,  does 
not  lose  his  lien  by  reason  only  that  he  has  obtained  judg- 
ment or  decree  for  the  price  of  the  goods. 

Stoppage  in  Transitu. 

Section  57. — [Seller  may  Stop  Goods  on  Buyer's  Insol- 
vency.]    Subject  to  the  provisions  of  this  act,  when  the  buy- 


g>5  oH-b9)  THE   SALES   ACT.  40.'^ 

cr  of  goods  is  or  becomes  insolvent,  the  unpaid  seller  who  has 
parted  with  the  possession  of  the  goods  has  the  right  of  stop- 
ping them  in  transitu,  that  is  to  say,  he  may  resume  possession 
of  the  goods  at  any  time  while  they  are  in  transit,  and  he  will 
then  become  entitled  to  the  same  rights  in  regard  to  the  goods 
as  he  would  have  had  if  he  had  never  parted  with  the  pos- 
session. 

Section  58. — [When  Goods  are  in  Transit.]  (1.)  Goods 
are  in  transit  within  the  meaning  of  section  57 : 

(a.)  From  the  time  when  they  are  delivered  to  a  carrier  by 
land  or  water,  or  other  bailee  for  the  ])urpose  of  transmission  to 
the  buyer,  until  the  buyer,  or  his  agent  in  that  behalf,  takes  de- 
livery of  them  from  such  carrier  or  other  bailee ; 

(b.)  If  the  goods  are  rejected  by  the  buyer  and  the  carrier 
or  other  bailee  continues  in  possession  of  them,  even  if  the  sell- 
er has  refused  to  receive  them  back. 

(2.)  Goods  are  no  longer  in  transit  within  the  meaning  of 
section  57: 

(a.)  If  the  buyer,  or  his  agent  in  that  behalf,  obtains  deliv- 
ery of  the  goods  before  their  arrival  at  the  appointed  destina- 
tion ; 

(b.)  If,  after  the  arrival  of  the  goods  at  the  appointed  desti- 
nation, the  carrier  or  other  bailee  acknowledges  to  the  buyer 
or  his  agent,  that  he  holds  the  goods  on  his  behalf  and  continues 
in  possession  of  them  as  bailee  for  the  buyer,  or  his  agent ;  and 
it  is  immaterial  that  a  further  destination  for  the  goods  may 
have  been  indicated  by  the  buyer ; 

(c.)  If  the  carrier  or  other  bailee  wrongfully  refuses  to  de- 
liver the  goods  to  the  buyer,  or  his  agent  in  that  behalf. 

(3.)  If  goods  are  delivered  to  a  ship  chartered  by  the  buyer, 
it  is  a  question  depending  on  the  circumstances  of  the  particular 
case,  whether  they  are  in  the  possession  of  the  master  as  a 
carrier,  or  as  agent  of  the  buyer. 

(4.)  If  part  delivery  of  the  goods  has  been  made  to  the  buyer, 
or  his  agent  in  that  behalf,  the  remainder  of  the  goods  may  be 
stopped  in  transitu,  unless  such  part  delivery  has  been  made 
under  such  circumstances  as  to  show  an  agreement  with  the 
buyer  to  give  up  possession  of  the  whole  of  the  goods. 

Section  59. —  [Ways  of  Exercising  the  Right  to  Stop.] 
(1.)  The  unj)aid  seller  may  exercise  his  right  of  stoppage  in 


404  APPENDIX.  (Pt.  4 

transitu  either  by  obtaining  actual  possession  of  the  goods,  or 
by  giving  notice  of  his  claim  to  the  carrier  or  other  bailee  in 
whose  possession  the  goods  are.  Such  notice  may  be  given 
either  to  the  person  in  actual  possession  of  the  goods  or  to  his 
principal.  In  the  latter  case  the  notice,  to  be  effectual,  must 
be  given  at  such  time  and  under  such  circumstances  that  the 
principal,  by  the  exercise  of  reasonable  diligence,  may  prevent 
a  delivery  to  the  buyer. 

(2.)  When  notice  of  stoppage  in  transitu  is  given  by  the  sell- 
er to  the  carrier,  or  other  bailee  in  possession  of  the  goods,  he 
must  redeliver  the  goods  to,  or  according  to  the  directions  of, 
the  seller.  The  expenses  of  such  redelivery  must  be  borne  by 
the  seller.  If,  however,  a  negotiable  document  of  title  repre- 
senting the  goods  has  been  issued  by  the  carrier  or  other  bailee, 
he  shall  not  be  obliged  to  deliver  or  justified  in  delivering  the 
goods  to  the  seller  unless  such  document  is  first  surrendered 
for  cancellation. 

Resale  by  the  Seller. 

Section  60. — [When  and  How  Resale  may  be  Made.] 
(1.)  Where  the  goods  are  of  a  perishable  nature,  or  where 
the  seller  expressly  reserves  the  right  of  resale  in  case  the 
buyer  should  make  default,  or  where  the  buyer  has  been  in 
default  in  the  payment  of  the  price  an  unreasonable  time,  an 
unpaid  seller  having  a  right  of  lien  or  having  stopped  the 
goods  in  transitu  may  resell  the  goods.  He  shall  not  there- 
after be  liable  to  the  original  buyer  upon  the  contract  to  sell 
or  the  sale  or  for  any  profit  made  by  such  resale,  but  may 
recover  from  the  buyer  damages  for  any  loss  occasioned  by  the 
breach  of  the  contract  or  the  sale. 

(2.)  Where  a  resale  is  made,  as  authorized  in  this  section, 
the  buyer  acquires  a  good  title  as  against  the  original  buyer. 

(3.)  It  is  not  essential  to  the  validity  of  a  resale  that  notice 
of  an  intention  to  resell  the  goods  be  given  by  the  seller  to  the 
original  buyer.  But  where  the  right  to  resell  is  not  based 
on  the  perishable  nature  of  the  goods  or  upon  an  express  pro- 
vision of  the  contract  or  the  sale,  the  giving  or  failure  to 
give  such  notice  shall  be  relevant  in  any  issue  involving  the 
question  whether  the  buyer  had  been  in  default  an  unreason- 
able time  before  the  resale  was  made. 


§§  CO   62)  THE    SALES    ACT.  405 

(I.)  It  is  not  essential  to  tiie  validity  of  a  resale  tliat  notice 
of  the  time  and  place  of  such  resale  should  be  given  by  the 
seller  to  the  original  buyer. 

(5.)  The  seller  is  bound  to  exercise  reasonable  care  and 
judgment  in  making  a  resale,  and  subject  to  this  requirement 
may  make  a  resale  cither  by  public  or  private  sale. 


Rescission  by  the  Seller. 

Section  61. — [When  and  How  the  Seller  may  Rescind 
the  Sale.]  (1.)  An  unpaid  seller  having  a  right  of  lien  or 
having  stopped  the  goods  in  transitu,  may  rescind  the  trans- 
fer of  title  and  resume  the  property  in  the  goods,  where  he 
expressly  reserved  the  right  to  do  so  in  case  the  buyer  should 
make  default,  or  where  the  buyer  has  been  in  default  in  the 
payment  of  the  price  an  unreasonable  time.  The  seller  shall 
not  thereafter  be  liable  to  the  buyer  upon  the  contract  to  sell 
or  the  sale,  but  may  recover  from  the  buyer  damages  for  any 
loss  occasioned  by  the  breach  of  the  contract  or  the  sale. 

(2.)  The  transfer  of  title  shall  not  be  held  to  have  been 
rescinded  by  an  unpaid  seller  until  he  has  manifested  by  no- 
tice to  the  buyer  or  by  some  other  overt  act  an  intention  to 
rescind.  It  is  not  necessary  that  such  overt  act  should  be 
communicated  to  the  buyer,  but  the  giving  or  failure  to  give 
notice  to  the  buyer  of  the  intention  to  rescind  shall  be  rel- 
evant in  any  issue  involving  the  question  whether  the  buyer 
had  been  in  default  an  unreasonable  time  before  the  right  of 
rescission  was  asserted. 

Section  62. —  [Effect  of  Sale  of  Goods  Subject  to  Lien  or 
Stoppage  in  Transitu.]  Subject  to  the  provisions  of  this  act, 
the  unpaid  seller's  right  of  lien  or  stoppage  in  transitu  is 
not  affected  by  any  sale,  or  other  disposition  of  the  goods 
which  the  buyer  may  have  made,  unless  tlie  seller  has  assented 
thereto. 

If,  however,  a  negotiable  document  of  title  has  been  issued 
for  goods,  no  seller's  lien  or  right  of  stojipage  in  transitu 
shall  defeat  the  right  of  any  purchaser  for  value  in  good  faith 
to  whom  such  document  has  been  negotiated,  whether  <:uch 
negotiation  be  prior  or  subsequent  to  the  notification  to  the 


406  APPENDIX.  (Pt.  5 

carrier  or  other  bailee   who   issued    such   document,   of  the 
seller's  claim  to  a  lien  or  right  of  stoppage  in  transitu. 


PART  V. 

Actions  for  Breach  of  the  Contract. 

Remedies  of  the  Seller. 

Section  63. — [Action  for  the  Price.]  (1)  Where,  under 
a  contract  to  sell  or  a  sale,  the  property  in  the  goods  has 
passed  to  the  buyer,  and  the  buyer  wrongfully  neglects  or  re- 
fuses to  pay  for  the  goods  according  to  the  terms  of  the  con- 
tract or  the  sale,  the  seller  may  maintain  an  action  against 
him  for  the  price  of  the  goods. 

(2.)  Where,  under  a  contract  to  sell  or  a  sale,  the  price  is 
payable  on  a  day  certain,  irrespective  of  delivery  or  of  trans- 
fer of  title,  and  the  buyer  wrongfully  neglects  or  refuses  to 
pay  such  price,  the  seller  may  maintain  an  action  for  the 
price,  although  the  property  in  the  goods  has  not  passed,  and 
the  goods  have  not  been  appropriated  to  the  contract.  But  it 
shall  be  a  defense  to  such  an  action  that  the  seller  at  any 
time  before  judgment  in  such  action  has  manifested  an  in- 
ability to  perform  the  contract  or  the  sale  on  his  part  or  an 
intention  not  to  perform  it. 

(3.)  Although  the  property  in  the  goods  has  not  passed, 
if  they  can  not  readily  be  resold  for  a  reasonable  price,  and 
if  the  provisions  of  section  64  (4)  are  not  applicable,  the 
seller  may  offer  to  deliver  the  goods  to  the  buyer,  and,  if  the 
buyer  refuses  to  receive  them,  may  notify  the  bu3'er  that  the 
goods  are  thereafter  held  by  the  seller  as  bailee  for  the  buyer. 
Thereafter  the  seller  may  treat  the  goods  as  the  buyer's  and 
may  maintain  an  action  for  the  price. 

Section  64. — Action  for  Damages  for  Non-Acceptance 
of  the  Goods.]  (1.)  Where  the  buyer  wrongfully  neglects 
or  refuses  to  accept  and  pay  for  the  goods,  the  seller  may 
maintain  an  action  against  him  for  damages  for  non-accept- 
ance. 


§§64-67)  TlIK    SAI.KS   ACT.  407 

(2.)  The  measure  of  damages  is  the  estimated  loss  direct- 
ly and  naturally  resulting,  in  the  ordinary  course  of  events, 
from  the  buyer's  breach  of  contract. 

(3.)  Where  there  is  an  available  market  for  the  goods  in 
question  the  measure  of  damages  is,  in  the  absence  of  special 
circumstances,  showing  proximate  damage  of  a  greater  amount, 
the  difference  between  the  contract  price  and  the  market  or 
current  price  at  the  time  or  times  when  the  goods  ought  to 
have  been  accepted,  or,  if  no  time  was  fixed  for  acceptance, 
then  at  the  time  of  the  refusal  to  accept. 

(4.)  If,  while  labor  or  expense  of  material  amount  are  nec- 
essary on  the  part  of  the  seller  to  enable  him  to  fulfill  his 
obligniions  under  the  contract  to  sell  or  the  sale,  the  buyer 
repudiates  the  contract  or  the  sale,  or  notifies  the  seller  to 
proceed  no  further  therewith,  the  buyer  shall  be  liable  to  the 
seller  for  no  greater  damages  than  the  seller  would  have  suf- 
fered if  he  did  nothing  towards  carrying  out  the  contract  or 
the  sale  after  receiving  notice  of  the  buyer's  repudiation  or 
countermand.  The  profit  the  seller  would  have  made  if  the 
contract  or  the  sale  had  been  fully  performed  shall  be  consid- 
ered in  estimating  such  damages. 

Section  65. —  [When  Seller  may  Rescind  Contract  or 
Sale.]  Where  the  goods  have  not  been  delivered  to  the  buyer, 
and  the  buyer  has  repudiated  the  contract  to  sell  or  sale,  or 
has  manifested  his  inability  to  perform  his  obligations  there- 
under, or  has  committed  a  material  breach  thereof,  the  sell- 
er may  totally  rescind  the  contract  or  the  sale  by  giving  notice 
of  his  election  so  to  do  to  the  buyer. 

Rc})icdics  of  the  Buyer. 

Section  66. —  [Action  for  Converting  or  Detaining 
Goods.]  Where  the  property  in  the  goods  has  passed  to  the 
buyer  and  the  seller  wrongfully  neglects  or  refuses  to  deliver 
the  goods,  the  buyer  may  maintain  any  action  allowed  by  law 
to  the  owner  of  goods  of  similar  kind  when  wrongfully  con- 
verted or  withheld. 

Section  67. —  [Action  for  Failing  to  Deliver  Goods.]  CI.) 
Wiiere   the   property    in   the   goods    has   not   passed    to   the 


i08  APPENDIX.  (Pt.  5 

buyer,  and  the  seller  wrongfully  neglects  or  refuses  to  deliver 
the  goods,  the  buyer  may  maintain  an  action  against  the 
seller  for  damages  for  non-delivery. 

(2.)  The  measure  of  damages  is  the  loss  directly  and  naturally 
resulting  in  the  ordinary  course  of  events,  from  the  seller's 
breach  of  contract. 

(3.)  Where  there  is  an  available  market  for  the  goods  in 
question,  the  measure  of  damages,  in  the  absence  of  special  cir- 
cumstances showing  proximate  damages  of  a  greater  amount, 
is  the  difference  between  the  contract  price  and  the  market 
or  current  price  of  the  goods  at  the  time  or  times  when  they 
ought  to  have  been  delivered,  or,  if  no  time  was  fixed,  then 
at  the  time  of  the  refusal  to  deliver. 

Section  68. —  [Specific  Performance.]  Where  the  seller 
has  broken  a  contract  to  deliver  specific  or  ascertained  goods, 
a  court  having  the  powers  of  a  court  of  equity  may,  if  it  thinks 
fit,  on  the  application  of  the  buyer,  by  its  judgment  or  decree 
direct  that  the  contract  shall  be  performed  specifically,  without 
giving  the  seller  the  option  of  retaining  the  goods  on  payment 
of  damages.  ,The  judgment  or  decree  may  be  unconditional, 
or  upon  such  terms  and  conditions  as  to  damages,  payment 
of  the  price  and  otherwise,  as  to  the  court  may  seem  just. 

Section  69. —  [Remedies  for  Breach  of  Warranty.]  (1.) 
Where  there  is  a  breach  of  warranty  by  the  seller,  the  buyer 
may,  at  his  election — 

(a.)  Accept  or  keep  the  goods  and  set  up  against  the  seller, 
the  breach  of  warranty  by  way  of  recoupment  in  diminution 
or  extinction  of  the  price ; 

fb.)  Accept  or  keep  the  goods  and  maintain  an  action 
aganist  the  seller  for  damages  for  the  breach  of  warranty ; 

(c.)  Refuse  to  accept  the  goods,  if  the  property  therein 
has  not  passed,  and  maintain  an  action  against  the  seller  for 
damages  for  the  breach  of  warranty ; 

(d.)  Rescind  the  contract  to  sell  or  the  sale  and  refuse  to 
receive  the  goods,  or  if  the  goods  have  already  been  received, 
return  them  or  offer  to  return  them  to  the  seller  and  recover 
the  price  or  any  part  thereof  which  has  been  paid. 

(2.)  When  the  buyer  has  claimed  and  been  granted  a  rem- 
edy in  any  one  of  these  ways,  no  other  remedy  can  thereafter 
be  granted. 


§§  G9-70)  THE   SALES   ACT.  409 

(3.)  Where  the  goods  have  been  delivered  to  the  buyer,  he 
can  not  rescind  the  sale  if  he  knew  of  the  breach  of  warranty 
when  he  accepted  the  goods,  or  if  he  fails  to  notify  the  sellei 
within  a  reasonable  time  of  the  election  to  rescind,  or  if  he  fail:: 
to  return  or  to  offer  to  return  the  goods  to  the  seller  in  sub- 
stantially as  good  condition  as  they  were  in  at  the  time  the 
property  was  transferred  to  the  buyer.  But  if  deterioration 
or  injury  of  the  goods  is  due  to  the  breach  of  warranty,  such 
deterioration  or  injury  shall  not  prevent  the  buyer  from  re- 
turning or  offering  to  return  the  goods  to  the  seller  and  re- 
scinding the  sale. 

(4.)  Where  the  buyer  is  entitled  to  rescind  the  sale  and 
elects  to  do  so,  the  buyer  shall  cease  to  be  liable  for  the  price 
upon  returning  or  offering  to  return  the  goods.  If  the  price 
or  any  part  thereof  has  already  been  paid,  the  seller  shall  be 
liable  to  repay  so  much  thereof  as  has  been  paid,  concurrent- 
ly with  the  return  of  the  goods,  or  immediately  after  an  offer 
to  return  the  goods  in  exchange  for  repayment  of  the  price. 

(5.)  Where  the  buyer  is  entitled  to  rescind  the  sale  and 
elects  to  do  so,  if  the  seller  refuses  to  accept  an  offer  of  the 
buyer  to  return  the  goods,  the  buyer  shall  thereafter  be  deem- 
ed to  hold  the  goods  as  bailee  for  the  seller,  but  subject  to  a 
Hen  to  secure  the  repayment  of  any  portion  of  the  price  which 
has  been  paid,  and  with  the  remedies  for  the  enforcement  of 
such  lien  allowed  to  an  unpaid  seller  by  section  53. 

(6.)  The  measure  of  damages  for  breach  of  warranty  is  the 
loss  directly  and  naturally  resulting,  in  the  ordinary  course  of 
events,  from  the  breach  of  warranty, 

(7.)  In  the  case  of  breach  of  warranty  of  quality,  such 
loss,  in  the  absence  of  special  circumstances  showing  proxi- 
mate damage  of  a  greater  amount,  is  the  difference  between 
the  value  of  the  goods  at  the  time  of  delivery  to  the  buyer 
and  the  value  they  would  have  had  if  they  had  answered  to 
the  warranty. 

Section  70. —  [Interest  and  Special  Damages.]  Nothing 
in  this  act  shall  aft'ect  the  right  of  the  buyer  or  the  seller  to 
recover  interest  or  special  damages  in  any  case  where  by  law 
interest  or  special  damages  may  be  recoverable,  or  to  recover 
money  paid  where  the  consideration  for  the  payment  of  it  has 
failed. 


410  APPENDIX.  (Pt.  6 

PART  VI. 

Interpretation. 

Section  71. —  [Variation  of  Implied  Obligations.]  Where 
any  right,  duty,  or  liability  would  arise  under  a  contract  to  sell 
or  a  sale  by  implication  of  law,  it  may  be  negatived  or  varied 
by  express  agreement  or  by  the  course  of  dealing  between 
the  parties,  or  by  custom,  if  the  custom,  be  such  as  to  bind  both 
parties  to  the  contract  or  the  sale. 

Section    72. — [Rights    may    be    Enforced    by    Action.] 

Where  any  right,  duty,  or  liability  is  declared  by  this  act,  it 
may,  unless  otherwise  by  this  act  provided,  be  enforced  by 
action. 

Section  73. — [Rule  for  Cases  Not  Provided  for  by  This 
Act.]  In  any  case  not  provided  for  in  this  act,  the  rules  of 
law  and  equity,  including  the  law  merchant,  and  in  particular 
the  rules  relating  to  the  law  of  principal  and  agent  and  to 
the  effect  of  fraud,  misrepresentation,  duress,  or  coercion, 
mistake,  bankruptcy,  or  other  invalidating  cause,  shall  continue 
to  apply  to  contracts  to  sell  and  to  sales  of  goods. 

Section  74. —  [Interpretation  shall  Give  Effect  to  Pur- 
pose of  Uniformity.]  This  act  shall  be  so  interpreted  and 
construed,  if  possible,  as  to  efifectuate  its  general  purpose  to 
make  uniform  the  law  of  those  states  which  enact  it. 

Section  75. — [Provisions  Not  Applicable  to  Mortgages.] 

The  provisions  of  this  act  relating  to  contracts  to  sell  and  to 
sales  do  not  apply,  unless  so  stated,  to  any  transaction  in  the 
form  of  a  contract  to  sell  or  a  sale  which  is  intended  to  op- 
erate by  way  of  mortgage,  pledge,  charge,  or  other  security. 

Section  76. —  [Definitions.]  (1.)  In  this  act,  unless  tlie 
context  or  subject-matter  otherwise  requires — 

"Action"  includes  counterclaim,  set-off,  and  suit  in  equity. 

"Buyer"  means  a  person  who  buys  or  agrees  to  buy  goods 
or  any  legal  successor  in  interest  of  such  person. 

"Defendant"  includes  a  plaintiff  against  whom  a  right  of 
set-off  or  counterclaim  is  asserted. 


§  70)  Tin:   SALES   ACT.  411 

"Delivery"  means  voluntary  transfer  of  possession  fruni 
one  person  to  another. 

"Divisible  contract  to  sell  or  sale"  means  a  contract  to  sell 
or  a  sale  in  which  by  its  terms  the  price  for  a  portion  or 
portions  of  the  goods  less  than  the  whole  is  fixed  or  ascer- 
tainable by  computation. 

"Document  of  title  to  goods"  includes  any  bill  of  lading, 
dock  warrant,  warehouse  receipt,  or  order  for  the  delivery  of 
goods,  or  any  other  document  used  in  the  ordinary  course  of 
business  in  the  sale  or  transfer  of  goods,  as  proof  of  the  pos- 
session or  control  of  the  goods,  or  authorizing  or  purporting 
to  authorize  the  possessor  of  the  document  to  transfer  or  re- 
ceive, either  by  endorsement  or  by  delivery,  goods  represented 
by  such  document. 

"Fault"  means  wrongful  act  or  default. 

"Fungible  goods"  mean  goods  of  which  any  unit  is  from 
its  nature  or  by  mercantile  usage  treated  as  the  equivalent  of 
any  other  unit. 

"Future  goods"  mean  goods  to  be  manufactured  or  acquired 
by  the  seller  after  the  making  of  the  contract  of  sale. 

"Goods"  include  all  chattels  personal  other  than  things  in 
action  and  money.  The  term  includes  emblements,  industrial 
growing  crops,  and  things  attached  to  or  forming  part  of  the 
land  which  are  agreed  to  be  severed  before  sale  or  under  the 
contract  of  sale. 

"Order"  in  sections  of  this  act  relating  to  documents  of 
title  means  an  order  by  indorsement  on  the  document. 

"Person"  includes  a  corporation  or  partnership  or  two  or 
more  persons  having  a  joint  or  common  interest. 

"Plaintiff"  includes  defendant  asserting  a  right  of  set-off  or 
counterclaim. 

"Property"  means  the  general  property  in  goods,  and  not 
merely  a  special  property. 

"Purchaser"  includes  mortgagee  and  pledgee. 

"Purchases"  include  taking  as  a  mortgagee  or  as  a  pledgee. 

"Quality  of  goods"  includes  their  state  or  condition. 

"Sale"  includes  a  bargain  and  sale  as  well  as  a  sale  and 
delivery. 

"Seller"  means  a  person  who  sells  or  agrees  to  sell  goods, 
or  any  legal  successor  in  interest  of  such  person. 


412  APPENDIX.  (Pt.  6 

"Specific  goods"  mean  goods  identified  and  agreed  upon  at 
the  time  a  contract  to  sell  or  a  sale  is  made. 

"Value"  is  any  consideration  sufficient  to  support  a  simple 
contract.  An  antecedent  or  pre-existing  claim,  whether  for 
money  or  not,  constitutes  value  where  goods  or  documents 
of  title  are  taken  either  in  satisfaction  thereof  or  as  security 
therefor. 

(2.)  A  thing  is  done  "in  good  faith"  within  the  meaning  of 
this  act  when  it  is  in  fact  done  honestly,  whether  it  be  done 
negligently  or  not.  * 

(3.)  A  person  is  insolvent  within  the  meaning  of  this  act 
who  either  has  ceased  to  pay  his  debts  in  the  ordinary  course 
of  business  or  can  not  pay  his  debts  as  they  become  due, 
whether  he  has  committed  an  act  of  bankruptcy  or  not,  and 
whether  he  is  insolvent  within  the  meaning  of  the  federal 
bankruptcy  law  or  not. 

(4.)  Goods  are  in  a  "deliverable  state"  within  the  meaning 
of  this  act  when  they  are  in  such  a  state  that  the  buyer  would, 
under  the  contract,  be  bound  to  take  delivery  of  them. 

Section  77.^ — [Inconsistent  Legislation  Repealed.]  All 
acts  or  parts  of  acts  inconsistent  with  this  act  are  hereby  re- 
pealed. 

Section  78.— [Time  When  the  Act  Takes  Effect.]     This 

act  shall  take  efifect  on  the  day  of  one  thousand  nine 

hundred  and . 

Section  79.— [Name  of  Act.]  This  act  may  be  cited  as  the 
Sales  Act. 


SALE    OF    GOODS    ACT. 

AN  ACT  FOR  CODIFYING  THE  LAW   RELATING 
TO  THE  SALE  OF  GOODS. 

(St.  5G  &  57  Vict.   c.  71,  Februabt  20,  18{>1.) 


PART  I. 

Formation  of  the  Contract. 

Contract  of  Sale. 

1. —  (1)  A  contract  of  sale  of  goods  is  a  contract  whereby  the 
seller  transfers  or  agrees  to  transfer  the  property  in  goods  to 
the  buyer  for  a  money  consideration,  called  the  price.  There 
may  be  a  contract  of  sale  between  one  part-owner  and  another. 

(2)  A  contract  of  sale  may  be  absolute  or  conditional. 

(3)  Where  under  a  contract  of  sale  the  property  in  the  goods 
is  transferred  from  the  seller  to  the  buyer  the  contract  is 
called  a  sale;  but  where  the  transfer  of  the  property  in  the 
goods  is  to  take  place  at  a  future  time  or  subject  to  some  con- 
dition thereafter  to  be  fulfilled,  the  contract  is  called  an  agree- 
ment to  sell. 

(4)  An  agreement  to  sell  becomes  a  sale  when  the  time  elapses 
or  the  conditions  are  fulfilled  subject  to  which  the  property  in 
the  goods  is  to  be  transferred. 

2.  Capacity  to  buy  and  sell  is  regulated  by  the  general  law 
concerning  capacity  to  contract,  and  to  transfer  and  acquire 
property. 

Provided  that  where  necessaries  are  sold  and  delivered  to  an 
infant,  or  minor,  or  to  a  person  who  by  reason  of  mental  in- 
T1ff.Sales(2d  Ed.)  (413) 


414  APPENDIX.  (Pt.  1 

capacity  or  drunkenness  is  incompetent  to  contract,  he  must 
pay  a  reasonable  price  therefor. 

Necessaries  in  this  section  mean  goods  suitable  to  the  condi- 
tion in  Hfe  of  such  infant  or  minor  or  other  person,  and  to  his 
actual  requirements  at  the  time  of  the  sale  and  delivery. 

Formalities  of  the  Contract. 

3.  Subject  to  the  provisions  of  this  act  and  of  any  statute 
in  that  behalf,  a  contract  of  sale  may  be  made  in  writing 
(either  with  or  without  seal),  or  by  word  of  mouth,  or  partly 
in  writing  and  partly  by  word  of  mouth,  or  may  be  implied  from 
the  conduct  of  the  parties. 

Provided  that  nothing  in  this  section  shall  affect  the  law  re- 
lating to  corporations. 

4. — (1)  A  contract  for  the  sale  of  any  goods  of  the  value  of 
ten  pounds  or  upwards  shall  not  be  enforceable  by  action  un- 
less the  buyer  shall  accept  part  of  the  goods  so  sold,  and  ac- 
tually receive  the  same,  or  give  something  in  earnest  to  bind 
the  contract,  or  in  part  payment,  or  unless  some  note  or  mem- 
orandum in  writing  of  the  contract  be  made  and  signed  by  the 
party  to  be  charged  or  his  agent  in  that  behalf. 

(2)  The  provisions  of  this  section  apply  to  every  such  con- 
tract, notwithstanding  that  the  goods  may  be  intended  to  be 
delivered  at  some  future  time,  or  may  not  at  the  time  of  such 
contract  be  actually  made,  procured,  or  provided,  or  fit  or  ready 
for  delivery,  or  some  act  may  be  requisite  for  the  making  or 
completing  thereof,  or  rendering  the  same  fit  for  delivery. 

(3)  There  is  an  acceptance  of  goods  within  the  meaning  of 
this  section  when  the  buyer  does  any  act  in  relation  to  the 
goods  which  recognizes  a  pre-existing  contract  of  sale  whether 
there  be  an  acceptance  in  performance  of  the  contract  or  not. 

(4)  The  provisions  of  this  section  do  not  apply  to  Scotland. 

Subject-Matter  of  Contract. 

5. — (1)  The  goods  which  form  the  subject  of  a  contract  of 
sale  may  be  either  existing  goods,  owned  or  possessed  by  the 
seller,  or  goods  to  be  manufactured  or  acquired  by  the  seller 


§§  5-9)  ENGLiaU   SALE   OF   GOODS   ACT.  Uo 

alter  the  nuking  of  the  contract  of  sale,  in  this  act  called 
"future  goods." 

(2)  There  may  be  a  contract  for  the  sale  of  goods,  the  ac- 
quisition of  which  by  the  seller  depends  upon  a  contingency 
which  may  or  may  not  happen. 

(3)  \\'here  by  a  contract  of  sale  the  seller  purports  to  ef- 
fect a  present  sale  of  future  goods,  the  contract  operates  as 
an  agreement  to  sell  the  goods. 

6.  Where  there  is  a  contract  for  the  sale  of  specific  goods, 
and  the  goods  without  the  knowledge  of  the  seller  have 
perished  at  the  time  when  the  contract  is  made,  the  contract  is 
void. 

7.  Where  there  is  an  agreement  to  sell  specific  goods,  and 
subsequently  the  goods,  without  any  fault  on  the  part  of  the 
seller  or  buyer,  perish  before  the  risk  passes  to  the  buyer,  the 
agreement  is  thereby  avoided. 

The  Price, 

8. — (1)  The  price  in  a  contract  of  sale  may  be  fixed  by  the 
contract,  or  may  be  left  to  be  fixed  in  manner  thereby  agreed. 
or  may  be  determined  by  the  course  of  dealing  between  the 
parties. 

(2)  Where  the  price  is  not  determined  in  accordance  with 
the  foregoing  provisions  the  buyer  must  pay  a  reasonable  price. 
What  is  a  reasonable  price  is  a  question  of  fact  dependent  on 
the  circumstances  of  each  particular  case. 

9. — (1)  Where  there  is  an  agreement  to  sell  goods  on  the 
terms  that  the  price  is  to  be  fixed  by  the  valuation  of  a  third 
party,  and  such  third  party  cannot  or  does  not  make  such  valu- 
ation, the  agreement  is  avoided ;  provided  that  if  the  goods  or 
any  part  thereof  have  been  delivered  to  and  appropriated  by 
the  buyer  he  must  pay  a  reasonable  price  therefor. 

(2)  Where  such  third  party  is  prevented  from  making  the 
valuation  by  the  fault  of  the  seller  or  buyer,  the  party  not  in 
fault  may  maintain  an  action  for  damages  against  the  party 
in  fault. 


416  APPENDIX.  (Pt.  1 


Conditions  and  Warranties. 

10. — (1)  Unless  a  different  intention  appears  from  the  terms 
of  the  contract,  stipulations  as  to  time  of  payment  are  not 
deemed  to  be  of  the  essence  of  a  contract  of  sale.  Whether 
any  other  stipulation  as  to  time  is  of  the  essence  of  the  contract 
or  not  depends  on  the  terms  of  the  contract. 

(2)  In  a  contract  of  sale  "month"  means  prima  facie  calendar 
month. 

11. — (1)  In  England  or  Ireland — 

(a)  Where  a  contract  of  sale  is  subject  to  any  condition  to 
be  fulfilled  by  the  seller,  the  buyer  may  waive  the  condition, 
or  may  elect  to  treat  the  breach  of  such  condition  as  a  breach 
of  warranty,  and  not  as  a  ground  for  treating  the  contract  as 
repudiated. 

(b)  Whether  a  stipulation  in  a  contract  of  sale  is  a  condition, 
the  breach  of  which  may  give  rise  to  a  right  to  treat  the  con- 
tract as  repudiated,  or  a  warranty,  the  breach  of  which  may 
give  rise  to  a  claim  for  damages  but  not  to  a  right  to  reject 
the  goods  and  treat  the  contract  as  repudiated,  depends  in  each 
case  on  the  construction  of  the  contract.  A  stipulation  may  be 
a  condition,  though  called  a  warranty  in  the  contract. 

(c)  Where  a  contract  of  sale  is  not  severable,  and  the  buyer 
has  accepted  the  goods,  or  part  thereof,  or  where  the  contract 
is  for  specific  goods,  the  property  in  which  has  passed  to  the 
buyer,  the  breach  of  any  condition  to  be  fulfilled  by  the  seller 
can  only  be  treated  as  a  breach  of  warranty,  and  not  as  a  ground 
for  rejecting  the  goods  and  treating  the  contract  as  repudiated, 
unless  there  be  a  term  of  the  contract,  express  or  implied,  to 
that  effect. 

(2)  In  Scotland,  failure  by  the  seller  to  perform  any  material 
part  of  a  contract  of  sale  is  a  breach  of  contract,  which  entitles 
the  buyer  either  within  a  reasonable  time  after  delivery  to  re- 
ject the  goods  and  treat  the  contract  as  repudiated,  or  to  re- 
tain the  goods  and  treat  the  failure  to  perform  such  material 
part  as  a  breach  which  may  give  rise  to  a  claim  for  compensa- 
tion or  damages. 


§§  11-14)  ENGLISH   SALE   OF   GOODS   AOT.  417 

(3)  Nothing  in  this  section  shall  aflfcct  the  case  of  any  con- 
dition or  warranty,  fulfilhiient  of  which  is  excused  by  law  by 
reason  of  impossibility  or  otherwise. 

12.  In  a  contract  of  sale,  unless  the  circumstances  of  the 
contract  are  such  as  to  show  a  different  intention,  there  is — 

(1)  An  implied  condition  on  the  part  of  the  seller  that  in  the 
case  of  a  sale  he  has  a  right  to  sell  the  goods,  and  that  in  the 
case  of  an  agreement  to  sell  he  will  have  a  right  to  sell  the 
goods  at  the  time  when  the  property  is  to  pass. 

(2)  An  implied  warranty  that  the  buyer  shall  have  and  enjoy 
quiet  possession  of  the  goods. 

(3)  An  implied  warranty  that  the  goods  shall  be  free  from 
any  charge  or  encumbrance  in  favor  of  any  third  party,  not  de- 
clared or  known  to  the  buyer  before  or  at  the  time  when  the 
contract  is  made. 

13.  Where  there  is  a  contract  for  the  sale  of  goods  by  de- 
scription, there  is  an  implied  condition  that  the  goods  shall  cor- 
respond with  the  description;  and  if  the  sale  be  by  sample, 
as  well  as  by  description,  it  is  not  sufficient  that  the  bulk  of  the 
goods  corresponds  with  the  sample  if  the  goods  do  not  also  cor- 
respond with  the  description. 

14.  Subject  to  the  provisions  of  this  act  and  of  any  statute 
in  that  behalf,  there  is  no  implied  warranty  or  coiulilion  as  to 
the  quality  or  fitness  for  any  particular  purpose  of  goods  sup- 
plied under  a  contract  of  sale,  except  as  follows : — 

(1)  Where  the  buyer,  expressly  or  by  implication,  makes 
known  to  the  seller  the  particular  purpose  for  which  the  goods 
are  required,  so  as  to  show  that  the  buyer  relics  on  the  seller's 
skill  or  judgment,  and  the  goods  are  of  a  description  which 
it  is  in  the  course  of  the  seller's  business  to  supply  (whether  he 
be  the  manufacturer  or  not),  there  is  an  implied  condition  that 
the  goods  shall  be  reasonably  fit  for  such  purpose,  provided  that 
in  the  case  of  a  contract  for  the  sale  of  a  specified  article  under 
its  patent  or  other  trade  name,  there  is  no  implied  conrlition  as 
to  its  fitness  for  any  particular  purpose. 

(2)  Where  goods  are  bought  by  description  from  a  seller  who 
deals  in  goods  of  that  description  (whether  he  be  the  manu- 
facturer or  not),  there  is  an  implied  conrlition  that  the  goods 
shall  be  of  merchantable  quality;  provided  that  if  the  buyer  has 

Tiff.Sales(2d  Ed.)— 27 


il8  APPENDIX.  (Pt.  2 

examined  the  goods,  there  shall  be  no  implied  condition  as  re- 
gards defects  which  such  examination  ought  to  have  revealed. 

(3)  An  implied  warranty  or  condition  as  to  quality  or  fitness 
for  a  particular  purpose  may  be  annexed  by  the  usage  of  trade. 

(4)  An  express  warranty  or  condition  does  not  negative  a 
warranty  or  condition  implied  by  this  act  unless  inconsistent 
therewith. 

Sale  by  Sample, 

15. — (1)  A  contract  of  sale  is  a  contract  for  sale  by  sample 
where  there  is  a  term  in  the  contract,  express  or  implied,  to  that 
effect. 

(2)  In  the  case  of  a  contract  for  sale  by  sample — 

(a)  There  is  an  implied  condition  that  the  bulk  shall  corre- 
spond with  the  sample  in  quality. 

(b)  There  is  an  implied  condition  that  the  buyer  shall  have 
a  reasonable  opportunity  of  comparing  the  bulk  with  the  sam- 
ple. 

(c)  There  is  an  implied  condition  that  the  goods  shall  be 
free  from  any  defect,  rendering  them  unmerchantable,  which 
would  not  be  apparent  on  reasonable  examination  of  the  sample. 


PART  II. 

Effects  of  the  Contract. 

Transfer  of  Property  as  Betzveen  Seller  and  Buyer. 

16.  Where  there  is  a  contract  for  the  sale  of  unascertained 
goods  no  property  in  the  goods  is  transferred  to  the  buyer  un- 
less and  until  the  goods  are  ascertained. 

17. — (1)  Where  there  is  a  contract  for  the  sale  of  specific 
or  ascertained  goods  the  property  in  them  is  transferred  to  the 
buyer  at  such  time  as  the  parties  to  the  contract  intend  it  to 
be  transferred. 

(2)  For  the  purpose  of  ascertaining  the  intention  of  the  par- 
ties regard  shall  be  had  to  the  terms  of  the  contract,  the  con- 
duct of  the  parties,  and  the  circumstances  of  the  case. 


§  18)  ENGLISH    SALE    OF   GOODS   ACT.  4\'.* 

18.  Unless  a  different  intention  appears,  the  following  arc 
rules  for  ascertaining  tlie  intention  of  the  parties  as  to  the 
time  at  which  the  property  in  the  goods  is  to  pass  to  the  buyer. 

Rule  1. — Where  there  is  an  unconditional  contract  for  the 
sale  of  specific  goods,  in  a  deliverable  state,  the  property  in  the 
goods  passes  to  the  buyer  when  the  contract  is  made,  and  it  is 
immaterial  whether  the  time  of  payment  or  the  time  of  delivery, 
or  both,  be  postponed. 

Rule  2. — Where  there  is  a  contract  for  the  sale  of  specific 
goods  and  the  seller  is  bound  to  do  something  to  the  goods, 
for  the  purpose  of  putting  them  into  a  deliverable  state,  the 
property  does  not  pass  until  such  thing  be  done,  and  the  buyer 
has  notice  thereof. 

Rule  3. — Where  there  is  a  contract  for  the  sale  of  specific 
goods  in  a  deliverable  state,  but  the  seller  is  bound  to  weigh, 
measure,  test,  or  do  some  other  act  or  thing  with  reference  to 
the  goods  for  the  purpose  of  ascertaining  the  price,  the  property 
does  not  pass  until  such  act  or  thing  be  done,  and  the  buyer  has 
notice  thereof. 

Rule  4. — When  goods  are  delivered  to  the  buyer  on  approval 
or  "on  sale  or  return"  or  other  similar  terms  the  property 
therein  passes  to  the  buyer : — 

(a)  When  he  signifies  his  a])proval  or  acceptance  to  the  seller, 
or  does  any  other  act  adopting  the  transaction. 

(b)  If  he  does  not  signify  his  approval  or  acceptance  to  the 
seller  but  retains  the  goods  without  giving  notice  of  rejection, 
then,  if  a  time  has  been  fixed  for  the  return  of  the  goods,  on 
the  expiration  of  such  time,  and,  if  no  time  has  been  fixed,  on 
the  expiration  of  a  reasonable  time.  \\'hat  is  a  reasonable  time 
is  a  question  of  fact. 

Rule  5. — (1)  ^^'here  there  is  a  contract  for  the  sale  of  unas- 
certained or  future  goods  by  description,  and  goods  of  that  de- 
scription and  in  a  deliverable  state  are  unconditionally  appro- 
priated to  the  contract,  either  by  the  seller  with  the  assent  of 
the  buyer,  or  by  the  buyer  with  the  assent  of  the  seller,  the 
property  in  the  goods  thereupon  passes  to  the  buyer.  Such 
assent  may  be  express  or  implied,  and  may  be  given  either  be- 
fore or  after  the  appropriation  is  made : 

(2)  Where,  in  pursuance  of  the  contract,  the  seller  delivers 
the  goods  to  the  buyer  or  to  a  carrier  or  other  bailee  or  cus- 


420  APPENDIX.  (Pt.  2 

todier  (whether  named  by  the  buyer  or  not)  for  the  purpose  of 
transmission  to  the  buyer,  and  does  not  reserve  the  right  of  dis- 
posal, he  is  deemed  to  have  unconditionally  appropriated  the 
goods  to  the  contract. 

19. — (1)  Where  there  is  a  contract  for  the  sale  of  specific 
goods  or  where  goods  are  subsequently  appropriated  to  the 
contract,  the  seller  may,  by  the  terms  of  the  contract  or  appro- 
priation, reserve  the  right  of  disposal  of  the  goods  until  certain 
conditions  are  fulfilled.  In  such  case,  notwithstanding  the  de- 
livery of  the  goods  to  the  buyer,  or  to  a  carrier  or  other  bailee 
or  custodier  for  the  purpose  of  transmission  to  the  buyer,  the 
property  in  the  goods  does  not  pass  to  the  buyer  until  the  con- 
ditions imposed  by  the  seller  are  fulfilled. 

(2)  Where  goods  are  shipped,  and  by  the  bill  of  lading  the 
goods  are  deliverable  to  the  order  of  the  seller  or  his  agent, 
the  seller  is  prima  facie  deemed  to  reserve  the  right  of  disposal. 

(3)  Where  the  seller  of  goods  draws  on  the  buyer  for  the 
price,  and  transmits  the  bill  of  exchange  and  bill  of  lading  to  the 
buyer  together  to  secure  acceptance  or  payment  of  the  bill  of  ex- 
change, the  buyer  is  bound  to  return  the  bill  of  lading  if  he 
does  not  honour  the  bill  of  exchange,  and  if  he  wrongfully  re- 
tains the  bill  of  lading  the  property  in  the  goods  does  not  pass 
to  him. 

20.  Unless  otherwise  agreed,  the  goods  remain  at  the  seller's 
risk  until  the  property  therein  is  transferred  to  the  buyer,  but 
when  the  property  therein  is  transferred  to  the  bu3^er,  the  goods 
are  at  the  buyer's  risk  whether  delivery  has  been  made  or  not. 

Provided  that  where  delivery  has  been  delayed  through  the 
fault  of  either  buyer  or  seller  the  goods  are  at  the  risk  of  the 
party  in  fault  as  regards  any  loss  which  might  not  have  oc- 
curred but  for  such  fault. 

Provided  also  that  nothing  in  this  section  shall  affect  the 
duties  or  liabilities  of  either  seller  or  buyer  as  a  bailee  or  cus- 
todier of  the  goods  of  the  other  party. 

Transfer  of  Title. 

21. — (1)  Subject  to  the  provisions  of  this  act,  where  goods 
are  sold  by  a  person  who  is  not  the  owner  thereof,  and  who 


§§  21-25)  ENGLISH    SALE    OF    COdDS    ACT.  41-* I 

does  not  sell  thcni  under  the  authority  or  with  the  consent  of  the 
owner,  the  buyer  acquires  no  better  title  to  the  goods  than  the 
seller  had,  unless  the  owner  of  the  ^oods  is  by  his  conduct  pre- 
cluded from  denying  the  seller's  authority  to  sell. 

(2)  Provided  also  that  nothing  in  this  Act  shall  affect — 

(a)  The  provisions  of  the  Factors  Acts,  or  any  enactment 
enabling  the  apparent  owner  of  goods  to  dispose  of  them  as  if 
he  were  the  true  owner  thereof; 

(b)  The  validity  of  any  contract  of  sale  under  any  special 
common  law  or  statutory  power  of  sale  or  under  the  order  of  a 
court  of  competent  jurisdiction. 

22. — (1)  Where  goods  are  sold  in  market  overt,  according  to 
the  usage  of  the  market,  the  buyer  acquires  a  good  title  to  the 
goods,  provided  he  bu}s  them  in  good  faith  and  without  notice 
of  any  defect  or  want  of  title  on  the  part  of  the  seller. 

(2)  Nothing  in  this  section  shall  affect  the  law  relating  to  the 
sale  of  horses. 

(3)  The  provisions  of  this  section  do  not  apply  to  Scotland. 

23.  When  the  seller  of  goods  has  a  voidable  title  thereto, 
but  his  title  has  not  been  avoided  at  the  time  of  the  sale,  the 
buyer  acquires  a  good  title  to  the  goods,  provided  he  buys  them 
in  good  faith  and  without  notice  of  the  seller's  defect  of  title. 

24. — (1)  Where  goods  have  been  stolen  and  the  offender  is 
prosecuted  to  conviction,  the  property  in  the  goods  so  stolen 
revests  in  the  person  who  was  the  owner  of  the  goods,  or  his 
personal  representative,  notwithstanding  any  intermediate  deal- 
ing with  them,  whether  by  sale  in  market  overt,  or  otherwise. 

(2)  Notwithstanding  any  enactment  to  the  contrary,  where 
goods  have  been  obtained  by  fraud  or  other  wrongful  means 
not  amounting  to  larceny,  the  property  in  such  goods  shall  not 
revest  in  the  person  who  was  the  owner  of  the  goods,  or  his 
personal  representative,  by  reason  only  of  the  conviction  of  the 
offender. 

(3)  The  provisions  of  this  section  do  not  apply  to  Scotland. 

25. — (1)  Where  a  person,  having  sold  goods,  continues  or  is 
in  possession  of  the  goods,  or  of  the  documents  of  title  to  the 
goods,  the  delivery  or  transfer  by  that  person,  or  by  a  mer- 
cantile agent  acting  for  him,  of  the  goods  or  documents  of 


422  Ari'HXDix.  (Pt.  2 

title  under  any  sale,  pledge,  or  other  disposition  thereof,  to  any 
person  receiving  the  same  in  good  faith  and  without  notice  of 
the  previous  sale,  shall  have  the  same  effect  as  if  the  person 
making  the  delivery  or  transfer  v^ere  expressly  authorized  by 
the  owner  of  the  goods  to  make  the  same. 

(2)  \\'here  a  person,  having  bought  or  agreed  to  buy  goods, 
obtains  with  the  consent  of  the  seller,  possession  of  the  goods 
or  the  documents  of  title  to  the  goods,  the  delivery  or  transfer 
by  that  person,  or  by  a  mercantile  agent  acting  for  him,  of 
the  goods  or  documents  of  title,  under  any  sale,  pledge,  or  other 
disposition  thereof,  to  any  person  receiving  the  same  in  good 
faith  and  without  notice  of  any  lien  or  other  right  of  the  orig- 
inal seller  in  respect  of  the  goods,  shall  have  the  same  effect  as 
if  the  person  making  the  delivery  or  transfer  were  a  mercantile 
agent  in  possession  of  the  goods  or  documents  of  title  with 
the  consent  of  the  owner. 

(3)  In  this  section  the  term  "mercantile  agent"  has  the  same 
meaning  as  in  the  Factors  Acts. 

26. — (1)  A  writ  of  fieri  facias  or  other  writ  of  execution 
against  goods  shall  bind  the  property  in  the  goods  of  the  execu- 
tion debtor  as  from  the  time  when  the  writ  is  delivered  to  the 
sheriff  to  be  executed  ;  and,  for  the  better  manifestation  of  such 
time,  it  shall  be  the  duty  of  the  sheriff,  without  fee,  upon  the 
receipt  of  any  such  writ  to  endorse  upon  the  back  thereof  the 
hour,  day,  month,  and  year  when  he  received  the  same. 

Provided  that  no  such  writ  shall  prejudice  the  title  to  such 
goods  acquired  by  any  person  in  good  faith  and  for  valuable 
consideration,  unless  such  person  had  at  the  time  when  he 
acquired  his  title  notice  that  such  writ  or  any  other  writ  by 
virtue  of  which  the  goods  of  the  execution  debtor  might  be 
seized  or  attached  had  been  delivered  to  and  remained  unex- 
ecuted in  the  hands  of  the  sheriff. 

(2)  In  this  section  the  term  "sheriff"  includes  any  officer 
charged  with  the  enforcement  of  a  writ  of  execution. 

(3)  The  provisions  of  this  section  do  not  apply  to  Scotland. 


^§  27-30)  ENGLISU    SALE   OF   GOODS   ACT.  423 

PART  III. 

Performance  of  the  Contra-ct. 

27.  It  is  the  duty  of  the  seller  to  deliver  the  goods,  and  of 
the  buyer  to  accept  and  pay  for  them,  in  accordance  with  the 
terms  of  the  contract  of  sale. 

28.  Unless  otherwise  agreed,  delivery  of  the  goods  and  pay- 
ment of  the  price  are  concurrent  conditions,  that  is  to  say,  the 
seller  must  be  ready  and  willing  to  give  possession  of  the  goods 
to  the  buyer  in  exchange  for  the  price,  and  the  buyer  must  be 
ready  and  willing  to  pay  the  price  in  exchange  for  possession  of 
the  goods. 

29. — (1)  Whether  it  is  for  the  buyer  to  take  possession  of  the 
goods  or  for  the  seller  to  send  them  to  the  buyer  is  a  question 
depending  in  each  case  on  the  contract,  express  or  implied,  be- 
tween the  parties.  Apart  from  any  such  contract,  express  or 
im])licd,  the  place  of  delivery  is  the  seller's  place  of  business,  if 
he  have  one,  and  if  not,  his  residence :  Provided  that,  if  the 
contract  be  for  the  sale  of  specific  goods,  which  to  the  knowl- 
edge of  the  parties  when  the  contract  is  made  are  in  some  other 
place,  then  that  place  is  the  place  of  delivery. 

(2)  Where  under  the  contract  of  sale  the  seller  is  bound  to 
send  the  goods  to  the  buyer,  but  no  time  for  sending  them  is 
fixed,  the  seller  is  bound  to  send  them  within  a  reasonable  time. 

(3)  Where  the  goods  at  the  time  of  sale  are  in  the  possession 
of  a  third  person,  there  is  no  delivery  by  seller  to  bu\er  unless 
and  until  such  third  person  acknowledges  to  the  buyer  that  he 
holds  the  goods  on  his  behalf;  provided  that  nothing  in  this 
section  shall  affect  the  operation  of  the  issue  or  transfer  of  any 
document  of  title  to  goods. 

(4)  Demand  or  tender  of  delivery  may  be  treated  as  ineffect- 
ual unless  made  at  a  reasonable  hour.  What  is  a  reasonable 
hour  is  a  question  of  fact. 

(5)  Unless  otherwise  agreed,  the  expenses  of  and  incidental 
to  putting  the  goods  into  a  deliverable  state  must  be  borne  by 
the  seller. 

30. — (1)  Where  the  seller  delivers  to  the  buyer  a  quantity  of 
goods  less  than  he  contracted  to  sell,  the  buyer  may  reject  them, 


424  APPENDIX.  (Pt.  3 

but  if  the  buyer  accepts  the  goods  so  delivered  he  must  pay 
for  them  at  the  contract  rate. 

(2)  Where  the  seller  delivers  to  the  buyer  a  quantity  of  goods 
larger  than  he  contracted  to  sell,  the  buyer  may  accept  the  goods 
included  in  the  contract  and  reject  the  rest,  or  he  may  reject  the 
whole.  If  the  buyer  accepts  the  whole  of  the  goods  so  deliv- 
ered he  must  pa}'-  for  them  at  the  contract  rate. 

(3)  Where  the  seller  delivers  to  the  buyer  the  goods  he  con- 
tracted to  sell  mixed  with  goods  of  a  different  description  not 
included  in  the  contract,  the  buyer  may  accept  the  goods  which 
are  in  accordance  with  the  contract  and  reject  the  rest,  or  he 
may  reject  the  whole. 

(4)  The  provisions  of  this  section  are  subject  to  any  usage  of 
trade,  special  agreement,  or  course  of  dealing  between  the  par- 
ties. 

31. — (1)  Unless  otherwise  agreed,  the  buyer  of  goods  is  not 
bound  to  accept  delivery  thereof  by  instalments. 

(2)  Where  there  is  a  contract  for  the  sale  of  goods  to  be  de- 
livered by  stated  instalments,  which  are  to  be  separately  paid 
for,  and  the  seller  makes  defective  deliveries  in  respect  of  one 
or  more  instalments,  or  the  buyer  neglects  or  refuses  to  take 
delivery  of  or  pay  for  one  or  more  instalments,  it  is  a  question 
in  each  case  depending  on  the  terms  of  the  contract,  and  the  cir- 
cumstances of  the  case,  whether  the  breach  of  contract  is  a  re- 
pudiation of  the  whole  contract,  or  whether  it  is  a  severable 
breach  giving  rise  to  a  claim  for  compensation,  but  not  to  a 
right  to  treat  the  whole  contract  as  repudiated. 

32. — (1)  Where,  in  pursuance  of  a  contract  of  sale,  the  seller 
is  authorized  or  required  to  send  the  goods  to  the  buyer,  de- 
livery of  the  goods  to  a  carrier,  whether  named  by  the  buyer  or 
not,  for  the  purpose  of  transmission  to  the  buyer,  is  prima 
facie  deemed  to  be  a  delivery  of  the  goods  to  the  buyer. 

(2)  Unless  otherwise  authorized  by  the  buyer,  the  seller  must 
make  such  contract  with  the  carrier  on  behalf  of  the  buyer  as 
may  be  reasonable,  having  regard  to  the  nature  of  the  goods 
and  the  other  circumstances  of  the  case.  If  the  seller  omit  so 
to  do,  and  the  goods  are  lost  or  damaged  in  course  of  transit, 
the  buyer  may  decline  to  treat  the  delivery  to  the  carrier  as  a 


§§  Z2    '^7)  ENGLISH    SALK    OF   GOODS    ACT.  41'." 

delivery  to  himself,  or  may  hold  the  seller  responsible  in  (lam- 
ages. 

(3)  Unless  otherwise  agreed,  where  goods  are  sent  by  the 
seller  to  the  buyer  by  a  route  involving  sea  transit,  under  cir- 
cumstances in  which  it  is  usual  to  insure,  the  seller  must  give 
such  notice  to  the  buyer  as  may  enable  him  to  insure  them  dur- 
ing their  sea  transit,  and,  if  the  seller  fails  to  do  so.  the  goods 
shall  be  deemed  to  be  at  his  risk  during  such  sea  transit. 

33,  Where  the  seller  of  goods  agrees  to  deliver  them,  at  his 
own  risk,  at  a  place  other  than  that  where  they  are  when  sold, 
the  buyer,  must,  nevertheless,  unless  otherwise  agreed,  take  any 
risk  of  deterioration  in  the  goods  necessarily  incident  to  the 
course  of  transit. 

34. — (1)  Where  goods  are  delivered  to  the  buyer,  which  he 
has  not  prcviousl\-  examined,  he  is  not  deemed  to  have  accepted 
them  unless  and  until  he  has  had  a  reasonable  opportunity  of 
examining  them  for  the  purpose  of  ascertaining  whether  they 
are  in  conformity  with  the  contract. 

(2)  Unless  otherwise  agreed,  when  the  seller  tenders  delivery 
of  goods  to  the  buyer,  he  is  bound,  on  request,  to  afford  the 
buyer  a  reasonable  opportunity  of  examining  the  goods  for 
the  purpose  of  ascertaining  whether  they  are  in  conformity 
with  the  contract. 

35.  The  buyer  is  deemed  to  have  accepted  the  goods  when 
he  intimates  to  the  seller  that  he  has  accepted  them,  or  when 
the  goods  have  been  delivered  to  him,  and  he  does  any  act  in  re- 
lation to  them  which  is  inconsistent  with  the  ownership  of  the 
seller,  or  when,  after  the  lapse  of  a  reasonable  time,  he  retains 
the  goods  without  intimating  to  the  seller  that  he  has  rejected 
them. 

36.  Unless  otherwise  agreed,  where  goods  are  delivered  to 
the  buyer,  and  he  refuses  to  accept  them,  having  the  right  so  to 
do,  he  is  not  bound  to  return  them  to  the  seller,  but  it  is  suffi- 
cient if  he  intimates  to  the  seller  that  he  refuses  to  accept  them. 

37.  When  the  seller  is  ready  and  willing  to  deliver  the  goods, 
and  requests  the  buyer  to  take  delivery,  and  the  buyer  does 
not  within  a  reasonable  time  after  such  request  take  delivery 
of  the  goods,  he  is  liable  to  tlie  seller  for  any  loss  occasional 


426  APPENDIX.  (Pt.  4 

by  his  neglect  or  refusal  to  take  delivery,  and  also  for  a  rea- 
sonable charge  for  the  care  and  custody  of  the  goods.  Pro- 
vided that  nothing  in  this  section  shall  affect  the  rights  of  the 
seller  where  the  neglect  or  refusal  of  the  buyer  to  take  delivery 
amounts  to  a  repudiation  of  the  contract. 


PART  IV. 
Rights  of  Unpaid  Seller  Against  the  Goods. 

38. — (1)  The  seller  of  goods  is  deemed  to  be  an  "unpaid 
seller"  within  the  meaning  of  this  act — 

(a)  When  the  whole  of  the  price  has  not  been  paid  or  ten- 
dered ; 

(b)  When  a  bill  of  exchange  or  other  negotiable  instrument 
has  been  received  as  conditional  payment,  and  the  condition 
on  which  it  was  received  has  not  been  fulfilled  by  reason  of  the 
dishonour  of  the  instrument  or  otherwise. 

(2)  In  this  part  of  this  act  the  term  "seller"  includes  any  per- 
son who  is  in  the  position  of  a  seller,  as,  for  instance,  an  agent 
of  the  seller  to  whom  the  bill  of  lading  has  been  indorsed,  or  a 
consignor  or  agent  who  has  himself  paid,  or  is  directly  re- 
sponsible for,  the  price. 

39. — (1)  Subject  to  the  provisions  of  this  act,  and  of  any 
statute  in  that  behalf,  notwithstanding  that  the  property  in  the 
goods  may  have  passed  to  the  buyer,  the  unpaid  seller  of  goods, 
as  such,  has  by  implication  of  law — 

(a)  A  lien  on  the  goods  or  right  to  retain  them  for  the  price 
while  he  is  in  possession  of  them ; 

(b)  In  case  of  the  insolvency  of  the  buyer,  a  right  of  stopping 
the  goods  in  transitu  after  he  has  parted  with  the  possession 
of  them ; 

(c)  A  right  of  re-sale  as  limited  by  this  act. 

(2)  Where  the  property  in  goods  has  not  passed  to  the  buyer, 
the  unpaid  seller  has,  in  addition  to  his  other  remedies,  a  right 
of  withholding  delivery  similar  to  and  co-extensive  with  his 
rights  of  lien  and  stoppage  in  transitu  where  the  property  has 
passed  to  the  buyer. 


§§  40-43)  ENGLISH    SALK    OF   GOODS    ACT.  427 

•10.  In  Scotland  a  seller  of  goods  may  attach  the  same  while 
in  his  own  hands  or  possession  by  arrestment  or  poinding;  and 
such  arrestment  or  poinding  shall  have  the  same  operation  and 
effect  in  a  competition  or  otherwise  as  aii  arrestment  or  poind- 
ing by  a  third  party. 


Unpaid  Seller's  Lien. 

41. — (1)  Subject  to  the  provisions  of  this  act,  the  unpaid  sell- 
er of  goods  who  is  in  possession  of  them  is  entitled  to  retain 
possession  of  them  until  payment  or  tender  of  the  price  in  the 
following  cases,  namely  : — 

(a)  Where  the  goods  have  been  sold  without  any  stipulation 
as  to  credit; 

(b)  Where  the  goods  have  been  sold  on  credit,  but  the  term 
of  credit  has  expired ; 

(c)  Where  the  buyer  becomes  insolvent. 

(2)  The  seller  may  exercise  his  right  of  lien  notwithstanding 
that  he  is  in  possession  of  the  goods  as  agent  or  bailee  or 
custodier  for  the  buyer. 

42.  Where  an  unpaid  seller  has  made  part  delivery  of  the 
goods,  he  may  exercise  his  right  of  lien  or  retention  on  the  re- 
mainder, unless  such  part  delivery  has  been  made  under  such 
circumstances  as  to  shew  an  agreement  to  waive  the  lien  or 
right  of  retention. 

43. — 11)  The  unpaid  seller  of  goods  loses  his  lien  or  right  of 
retention  thereon — 

(a)  When  he  delivers  the  goods  to  a  carrier  or  other  bailee 
or  custodier  for  the  purpose  of  transmission  to  the  buyer  with- 
out reserving  the  right  of  disposal  of  the  goods  ; 

(b)  When  the  buyer  or  his  agent  lawfully  claims  possession 
of  the  goods; 

(c)  By  waiver  thereof. 

(3)  The  unpaid  seller  of  goods,  having  a  lien  or  right  of  re- 
tention thereon,  does  not  lose  his  lien  or  right  of  retention 
by  reason  only  that  he  has  obtained  judgment  or  decree  for 
the  price  of  the  goods. 


428  APPENDIX.  (Pt.  4 

Stoppage  in  Transitu. 

44,  Subject  to  the  provisions  of  this  act,  when  the  buyer  of 
goods  becomes  insolvent,  the  unpaid  seller  who  has  parted  with 
the  possession  of  the  goods  has  the  right  of  stopping  them  in 
transitu,  that  is  to  say,  he  may  resume  possession  of  the  goods 
as  long  as  they  are  in  course  of  transit,  and  may  retain  them 
until  payment  or  tender  of  the  price. 

45. — (1)  Goods  are  deemed  to  be  in  course  of  transit  from 
the  time  when  they  are  delivered  to  a  carrier  by  land  or  water, 
or  other  bailee  or  custodier,  for  the  purpose  of  transmission  to 
the  buyer,  until  the  buyer,  or  his  agent  in  that  behalf,  takes 
delivery  of  them  from  such  carrier  or  other  bailee  or  custodier. 

(2)  If  the  buyer  or  his  agent  in  that  behalf  obtains  delivery 
of  the  goods  before  their  arrival  at  the  appointed  destination, 
the  transit  is  at  an  end. 

(3)  If,  after  the  arrival  of  the  goods  at  the  appointed  desti- 
nation, the  carrier  or  other  bailee  or  custodier  acknowledges 
to  the  buyer,  or  his  agent,  that  he  holds  the  goods  on  his  behalf, 
and  continues  in  possession  of  them  as  bailee  or  custodier  for 
the  buyer,  or  his  agent,  the  transit  is  at  an  end,  and  it  is  im- 
material that  a  further  destination  for  the  goods  may  have 
been  indicated'  by  the  buyer. 

(4)  If  the  goods  are  rejected  by  the  buyer,  and  the  carrier 
or  other  bailee  or  custodier  continues  in  possession  of  them, 
the  transit  is  not  deemed  to  be  at  an  end,  even  if  the  seller  has 
refused  to  receive  them  back. 

(5)  When  goods  are  delivered  to  a  ship  chartered  by  the 
buyer  it  is  a  question  depending  on  the  circumstances  of  the 
particular  case,  whether  they  are  in  the  possession  of  the  mas- 
ter as  a  carrier,  or  as  agent  to  the  buyer, 

(6)  Where  the  carrier  or  other  bailee  or  custodier  wrong- 
fully refuses  to  deliver  the  goods  to  the  buyer,  or  his  agent  in 
that  behalf,  the  transit  is  deemed  to  be  at  an  end. 

(7)  Where  part  delivery  of  the  goods  has  been  made  to  the 
buyer,  or  his  agent  in  that  behalf,  the  remainder  of  the  goods 
may  be  stopped  in  transitu,  unless  such  part  delivery  has  been 
made  under  such  circumstances  as  to  show  an  agreement  to 
give  up  possession  of  the  whole  of  the  goods. 


§§  46-48)  ENGLISH    SAI.K    OF    GOODS   ACT.  121) 

IG. — (1)  The  unpaid  seller  may  exercise  his  right  of  stop- 
page in  transitu  cither  by  taking  actual  possession  of  the  goods, 
or  by  giving  notice  of  his  claim  to  the  carrier  or  other  bailee 
or  custodier  in  whose  possession  the  goods  are.  Such  notice 
may  be  given  either  to  the  person  in  actual  possession  of  the 
goods  or  to  his  principal.  In  the  latter  case  the  notice,  to  be 
eflFectual,  must  be  given  at  such  time  and  under  such  circum- 
stances that  the  principal,  by  the  exercise  of  reasonable  dili- 
gence, may  communicate  it  to  his  servant  or  agent  in  time  to 
prevent  a  delivery  to  the  buyer. 

(2)  When  notice  of  stoppage  in  transitu  is  given  by  the  sell- 
er to  the  carrier,  or  other  bailee  or  custodier  in  possession  of 
the  goods,  he  must  re-deliver  the  goods  to,  or  according  to 
the  directions  of,  the  seller.  The  expenses  of  such  re-delivery 
must  be  borne  by  the  seller. 


Rc-Sale  by  Buyer  or  Seller. 

47.  Subject  to  the  provisions  of  this  act,  the  unpaid  sell- 
er's right  of  lien  or  retention  or  stoppage  in  transitu  is  not  af- 
fected by  any  sale,  or  other  disposition  of  the  goods  which 
the  buyer  may  have  made,  unless  the  seller  has  assented  thereto. 

Provided  that  where  a  document  of  title  to  goods  has  been 
lawfully  transferred  to  any  person  as  buyer  or  owner  of  the 
goods,  and  that  person  transfers  the  document  to  a  person 
who  takes  the  document  in  good  faith  and  for  valuable  con- 
sideration, then,  if  such  last-mentioned  transfer  was  by  way  of 
sale,  the  unpaid  seller's  right  of  lien  or  retention  or  stoppage 
in  transitu  is  defeated,  and  if  such  last-mentioned  transfer 
was  by  way  of  pledge  or  other  disposition  for  value,  the  unpaid 
seller's  right  of  lien  or  retention  or  stoppage  in  transitu  can 
only  be  exercised  subject  to  the  rights  of  the  transferee. 

48. — (1)  Subject  to  the  provisions  of  this  section,  a  con- 
tract of  sale  is  not  rescinded  by  the  mere  exercise  by  an  un- 
paid seller  of  his  right  of  lien  or  retention  or  stoppage  in 
transitu. 

(2)  Where  an  unpaid  seller  who  has  exercised  his  right 
of  lien  or  retention  or  stoppage  in  transitu  re-sells  the  gnod^^. 


430  APPENDIX.  (Pt.  5 

the  buyer  acquires  a  good  title  thereto  as  against  the  original 
buyer. 

(3)  Where  the  goods  are  of  a  perishable  nature,  or  where 
the  unpaid  seller  gives  notice  to  the  buyer  of  his  intention 
to  re-sell,  and  the  buyer  does  not  within  a  reasonable  time 
pay  or  tender  the  price,  the  unpaid  seller  may  re-sell  the  goods 
and  recover  from  the  original  buyer  damages  for  any  loss 
occasioned  by  his  breach  of  contract. 

(4)  Where  the  seller  expressly  reserves  a  right  of  re-sale 
in  case  the  buyer  should  make  default,  and,  on  the  buyer  mak- 
ing default,  re-sells  the  goods,  the  original  contract  of  sale 
is  thereby  rescinded,  but  without  prejudice  to  any  claim  the 
seller  may  have  for  damages. 


PART  V. 
Actions  for  Breach  op  the  Contract. 

Remedies  of  the  Seller. 

49. — (1)  Where,  under  a  contract  of  sale,  the  property  in 
the  goods  has  passed  to  the  buyer,  and  the  buyer  wrongfully 
neglects  or  refuses  to  pay  for  the  goods  according  to  the  terms 
of  the  contract,  the  seller  may  maintain  an  action  against  him 
for  the  price  of  the  goods. 

(2)  Where,  under  a  contract  of  sale,  the  price  is  payable 
on  a  day  certain  irrespective  of  delivery,  and  the  buyer  wrong- 
fully neglects  or  refuses  to  pay  such  price,  the  seller  may  main- 
tain an  action  for  the  price,  although  the  property  in  the  goods 
has  not  passed,  and  the  goods  have  not  been  appropriated  to 
the  contract. 

(3)  Nothing  in  this  section  shall  prejudice  the  right  of  the 
seller  in  Scotland  to  recover  interest  on  the  price  from  the 
date  of  tender  of  the  goods,  or  from  the  date  on  which  the 
price  was  payable,  as  the  case  may  be. 

50. — (1)  Where  the  buyer  wrongfully  neglects  or  refuses 
to  accept  and  pay  for  the  goods,  the  seller  may  maintain  an 
action  against  him  for  damages  for  non-acceptance. 


§§  50-53)  ENGLISH    SAl.i;    OF   GOODS   ACT.  431 

(2)  The  measure  of  damages  is  the  estimated  loss  directly 
and  naturally  resultinp^,  in  the  ordinary-  course  of  events,  from 
the  buyer's  breach  of  contract. 

(3)  Where  there  is  an  available  market  for  the  goods 
in  question  the  measure  of  damages  is  prima  facie  to  be  as- 
certained by  the  dififerencc  between  the  contract  price  and  the 
market  or  current  price  at  the  time  or  times  when  the  goods 
ought  to  have  been  accepted,  or,  if  no  time  was  fixed  for  ac- 
ceptance, then  at  the  time  of  the  refusal  to  accept. 

Remedies  of  the  Buyer. 

51. —  (1)  \\nicre  the  seller  wrongfully  neglects  or  refuses 
to  deliver  the  goods  to  the  buyer,  the  buyer  may  maintain  an 
action  against  the  seller  for  damages  for  non-deliver\\ 

(2)  The  measure  of  damages  is  the  estimated  loss  directly 
and  naturally  resulting,  in  the  ordinary  course  of  events,  from 
the  seller's  breach  of  contract. 

(3)  Where  there  is  an  available  market  for  the  goods  in 
question  the  measure  of  damages  is  prima  facie  to  be  ascer- 
tained by  the  difference  between  the  contract  price  and  the 
market  or  current  price  of  the  goods  at  the  time  or  times  when 
they  ought  to  have  been  delivered,  or.  if  no  time  was  fixed, 
then  at  the  time  of  the  refusal  to  deliver. 

52.  In  an  action  for  breach  of  contract  to  deliver  specific 
or  ascertained  goods  the  Court  may,  if  it  thinks  fit.  on  the 
application  of  the  plaintiff,  by  its  judgment  or  decree  direct 
that  the  contract  shall  be  performed  specifically,  without  giv- 
ing the  defendant  the  option  of  retaining  the  goods  on  payment 
of  damages.  The  judgment  or  decree  may  be  unconditional, 
or  upon  such  terms  and  conditions  as  to  damages,  payment 
of  the  price,  and  otherwise,  as  to  the  Court  may  seem  just, 
and  the  application  bv  the  plaintiff'  may  be  made  at  any  time 
before  judgment  or  decree. 

The  provisions  of  this  section  shall  be  deemed  to  be  sup- 
plementary to,  and  not  in  derogation  of,  the  right  of  specific 
implement  in  Scotland. 

53. — (1)  W]^Gre  there  is  a  breach  of  warranty  by  the  seller, 
or  where  the  buyer  elects,  or  is  compelled,  to  treat  any  breach 


432  APPENDIX.  (Pt.  6 

of  a  condition  on  the  part  of  the  seller  as  a  breach  of  war- 
ranty, the  buyer  is  not  by  reason  only  of  such  breach  of  war- 
ranty entitled  to  reject  the  goods;   but  he  may 

(a)  set  up  against  the  seller  the  breach  of  warranty  in  dim- 
inution or  extinction  of  the  price ;  or 

(b)  maintain  an  action  against  the  seller  for  damages  for 
the  breach  of  warranty. 

(2)  The  measure  of  damages  for  breach  of  warranty  is 
the  estimated  loss  directly  and  naturally  resulting  in  the  ordi- 
nary course  of  events,  from  the  breach  of  warranty. 

(3)  In  the  case  of  breach  of  warranty  of  quality  such  loss 
is  prima  facie  the  difference  between  the  value  of  the  goods  at 
the  time  of  delivery  to  the  buyer  and  the  value  they  would 
have  had  if  they  had  answered  to  the  warranty. 

(4)  The  fact  that  the  buyer  has  set  up  the  breach  of  war- 
ranty in  diminution  or  extinction  of  the  price  does  not  prevent 
him  from  maintaining  an  action  for  the  same  breach  of  war- 
ranty if  he  has  suffered  further  damage. 

(5)  Nothing  in  this  section  shall  prejudice  or  affect  the 
buyer's  right  of  rejection  in  Scotland  as  declared  by  this  act. 

54.  Nothing  in  this  act  shall  affect  the  right  of  the  buyer 
or  the  seller  to  recover  interest  or  special  damages  in  any  case 
where  by  law  interest  or  special  damages  may  be  recoverable, 
or  to  recover  money  paid  where  the  consideration  for  the  pay- 
ment of  it  has  failed. 


PART  VI. 
Supplementary, 

55.  Where  any  right,  duty,  or  liability  would  arise  under 
a  contract  of  sale,  by  implication  of  law,  it  may  be  negatived  or 
varied  by  express  agreement  or  by  the  course  of  dealing  be- 
tween the  parties,  or  by  usage,  if  the  usage  be  such  as  to 
bind  both  parties  to  the  contract. 

56.  Where,  by  this  act,  any  reference  is  made  to  a  reason- 
able time,  the  question  what  is  a  reasonable  time  is  a  question 
of  fact. 


§§  57-60)  ENGLISH    SALE    OF   GOODS  ACT.  433 

57.  Where  any  ri^lit,  duty,  or  liability  is  declared  by  this 
act,  it  may,  unless  otherwise  by  thi'^  act  provided,  be  enforced 
by  action, 

58.  In  the  case  of  a  sale  by  auction — 

(1)  Where  goods  are  put  up  for  sale  by  auction  in  lots,  each 
lot  is  prima  facie  decinctl  to  be  tlie  subject  of  a  separate  con- 
tract of  sale. 

(2)  A  sale  by  auction  is  complete  when  the  auctioneer  an- 
nounces its  completion  by  the  fall  of  the  hammer,  or  in  other 
customary  uKumcr.  Until  such  announcement  is  made  any 
bidder  may  retract  his  bid. 

(o)  Where  a  sale  by  auction  is  not  notified  to  be  subject 
to  a  right  to  bid  on  behalf  of  the  seller,  it  shall  not  be  lawful 
for  the  seller  to  bid  himself  or  to  employ  any  person  to  bid 
at  such  sale,  or  for  the  auctioneer  knowingly  to  take  any  bid 
from  the  seller  or  any  such  person  :  Any  sale  contravening  this 
rule  may  be  treated  as  fraudulent  by  the  buyer. 

(4)  A  sale  by  auction  may  be  notified  to  be  subject  to  a  re- 
served or  upset  price,  and  a  right  to  bid  may  also  be  reserved 
expressly  by  or  on  behalf  of  the  seller. 

Where  a  right  to  bid  is  expressly  reserved,  but  not  other- 
wise, the  seller,  or  any  one  person  on  his  behalf,  may  bid  at  the 
auction. 

59.  In  Scotland  where  a  buyer  has  elected  to  accept  goods 
which  he  might  have  rejected,  and  to  treat  a  breach  of  contract 
as  only  giving  rise  to  a  claim  for  damages,  he  may,  in  an  ac- 
tion by  the  seller  for  the  price,  be  required,  in  the  discretion  of 
the  Court  before  which  the  action  depends,  to  consign  or  pay 
into  Court  the  price  of  the  goods,  or  part  thereof,  or  to  give 
other  reasonable  security  for  the  due  payment  thereof. 

no.  The  enactments  mentioned  in  the  schedule  to  this  act 
are  hereby  repealed  as  from  the  commencement  of  this  act  to 
the  extent  in  that  schedule  mentioned. 

Provided  that  sucii  repeal  shall  not  aflfect  anything  done  or 
suffered,  or  any  right,  title,  or  interest  acquired  or  accrued  be- 
fore the  commencement  of  this  act.  or  any  legal  proceeding 
or  remedy  in  respect  of  any  such  thing,  right,  title,  or  interest. 
Tiff.Sale8(2d  Ed.)— 28 


434  ArPEXDix.  (Pt.  6 

61. — (1)  The  rules  in  bankruptcy  relating  to  contracts  of 
sale  shall  continue  to  apply  thereto,  notwithstanding  anything 
in  this  act  contained. 

(2)  The  rules  of  the  common  law,  including  the  law  mer- 
chant, save  in  so  far  as  they  are  inconsistent  with  the  express 
provisions  of  this  act,  and  in  particular  the  rules  relating  to  the 
law  of  principal  and  agent  and  the  effect  of  fraud,  misrepre- 
sentation, duress  or  coercion,  mistake,  or  other  invalidating 
cause,  shall  continue  to  apply  to  contracts  for  the  sale  of  goods. 

(3)  Nothing  in  this  act  or  in  any  repeal  effected  thereby 
shall  affect  the  enactments  relating  to  bills  of  sale,  or  any  enact- 
ment relating  to  the  sale  of  goods  which  is  not  expressly  re- 
pealed by  this  act. 

(4)  The  provisions  of  this  act  relating  to  contracts  of  sale  do 
not  apply  to  any  transaction  in  the  form  of  a  contract  of  sale 
which  is  intended  to  operate  by  way  of  mortgage,  pledge, 
charge,  or  other  security. 

(5)  Nothing  in  this  act  shall  prejudice  or  affect  the  land- 
lord's right  of  hypothec  or  sequestration  for  rent  in  Scotland. 

62. — (1)  In  this  act,  unless  the  context  or  subject-matter 
otherwise  requires — 

"Action"  includes  counterclaim  and  set-oft',  and  in  Scotland 
condescendence  and  claim  and  compensation. 

"Bailee"  in  Scotland  includes  custodier, 

"Buyer"  means  a  person  who  buys  or  agrees  to  buy  goods. 

"Contract  of  sale"  includes  an  agreement  to  sell  as  well  as  a 
sale. 

"Defendant"  includes  in  Scotland  defender,  respondent,  and 
claimant  in  a  multiple-poinding. 

"Delivery"  means  voluntary  transfer  of  possession  from  one 
person  to  another. 

"Document  of  title  to  goods"  has  the  same  meaning  as  it  has 
in  the  Factors  Acts. 

"Factors  Acts"  mean  the  Factors  Act,  1889 ;  the  Factors 
(Scotland)  Act,  1890,  and  any  enactment  amending  or  substi- 
tuted for  the  same. 

"Fault"  means  wrongful  act  or  default. 

"Future  goods"  mean  goods  to  be  manufactured  or  acquired 
by  the  seller  after  the  making  of  the  contract  of  sale. 

"Goods"  include  all  chattels  personal  other  than  things  in  ac- 


§§  6264)  ENGLISH    SALi:    UF   GOODS    ACT.  -j:!") 

tion  ami  money,  and  in  Scotland  all  corporeal  movable^  ex- 
cept money.  The  term  also  includes  emblements,  industrial 
j^rowinj^  crops,  and  things  attached  to  or  forming  part  <tf  the 
land  which  are  agreed  to  be  severed  before  sale  or  under  the 
contract  of  sale. 

"Lien"  in  Scotland  includes  right  of  retention. 

"Plaintiff"  includes  pursuer,  complainer,  claimant  in  a  mul- 
tiple-poinding,  and  defendant  or  defender  counterclaiming. 

"Property"  means  the  general  property  in  goods,  and  not 
merely  a  special  property. 

"Quality  of  goods"  includes  their  state  or  condition. 

"Sale"  includes  a  bargain  and  sale  as  well  as  a  sale  and  de- 
livery. 

"Seller"  means  a  person  who  sells  or  agrees  to  sell  goods. 

"Specific  goods"  means  goods  identified  and  agreed  upon 
at  the  time  a  contract  of  sale  is  made. 

"Warranty,"  as  regards  England  and  Ireland,  means  an 
agreement  with  reference  to  goods  which  are  the  subject  of  a 
contract  of  sale,  but  collateral  to  the  main  purpose  of  such  con- 
tract, the  breach  of  which  gives  rise  to  a  claim  for  damages, 
but  not  to  a  right  to  reject  the  goods  and  treat  the  contract  as 
repudiated. 

As  regards  Scotland,  a  breach  of  warranty  shall  be  deemed 
to  be  a  failure  to  perform  a  material  part  of  the  contract. 

(2)  A  thing  is  deemed  to  be  done  "in  good  faith"'  within  the 
meaning  of  this  act  when  it  is  in  fact  done  lionostly,  whether 
it  be  done  negligently  or  not. 

(3)  A  person  is  deemed  to  be  insolvent  within  the  meaning 
of  this  act  who  either  has  ceased  to  pay  his  debts  in  the  ordinary 
course  of  business,  or  cannot  pay  his  debts  as  they  become  due. 
whether  he  has  committed  an  act  of  bankruptcy  or  not  and 
whether  he  has  become  a  notour  bankrupt  or  not. 

(4)  Goods  are  in  a  "deliverable  state"  within  the  meaning  of 
this  act  when  they  are  in  such  a  state  that  the  buyer  would  un- 
der the  contract  be  bound  to  take  delivery  of  them. 

63.  This  act  shall  come  into  operation  on  the  first  day  of 
January,  one  thousand  eight  hundred  and  ninety-four. 

64.  This  act  mav  be  cited  as  the  Sale  of  Goods  Act,  1803. 


TABLE  OF   CASES  CITED. 


[THE   FIGURES   BEFEB  TO    PAQES.] 


Abbot  V.  Bayloy,  25. 
Abbott  V.  C'n':il,  23. 

V.  fillclirist.  G9. 

V.  Mnrsball,  182. 

V.  Wolsey,  91. 
Abe  Stein  Co.  v.  Robertson,  236. 
Acebal  v.  Levy,  GO.  01,  91.  105. 
Ackermau  v.  Morris,  343. 

V.  Rubens,  341.  347,  350. 
Acme  Electrical  lUustratinp  &  Ad- 
vertising  Co.   V.   Van   Derbeck, 
217. 
-\praman  v.  Morrlce,  126. 
-Vdaui.   Meldnim   &  Anderson   Co. 

V.  Stewart,  105. 
Adams  v.  .\nu'S,  308. 

T.  Beall.  16. 

V.  Coulliard.  212. 

v.  Field,   112. 

V.  Foley.  273. 

V.  Gay.  215,  216. 

V.  Luinbor  Co..  124. 

V.  Messinger,  .3t>0. 

V.  O'Connor,   125. 
.\dams  Exp.  Co.  v.  Reno,  222. 
.Vdams  Radiator  &  Boiler  Works 

V.  Sclinader,  2,34. 
Adler  V.  Fenton,  188. 
A.  D.  Fuffer  &  Sons  Mfg.  Co.  v. 

Lucas,  141. 
JFAna  Life  Tns.  Co.  v.  Sellers,  22. 
.1"^tna  Powder  Co.  v.  Hildebrand, 

11. 
Agnew  V.  Dumas.  89,  94. 


Agulrre  v.  Parmelee,  331. 
A.  II.  Andrews  &  Co.  v.  Bank,  135. 
Aiken  v.  Blaisdell,  211,  214.  215. 
Ajello  v.  Worsley,  49. 
Akeloy  v.  Boom  Co.,  315. 
Alabama  G.  S.  R.  Co.  v.  .Mt  Ver- 
non Co.,  165,  171. 
Alabama    Nat.     Bank    v.    Parker 

&  Co..  157. 
Alabama  Steel  &  Wire  Co.  v.  Sy- 

moiis,  373. 
Albermarle  Luml)er  Co.  v.  Wilcox, 

•■,0. 
Albrigbt  v.   Meredith.   138,   140. 
A! den  v.  Hart,  260.  2*.m;. 

V.   W.  J.  Dyer  &  Bro.,  140. 
Alden  Speare's  Sons  Co.  v.  Hub- 

ingor.  .'{.">0. 
.Mdcnii.in  v.  Railroad.  169. 
Aldricli  V.  .Jackson,  .362. 
Aldridge  v.  Jobnson,  1.58. 
Alexander  v.  Gardner,  153,  159. 

V.   Haskins,  23. 
Alfred  Sbrimptnn  &  Son  v.  Brice, 
5.5. 

V.   Dworsky,    68. 
Alger-Fowlor  Co.  v.  Tracy,  355. 
Allan   V.   Grippor.  .333. 

V.   Lake.   2-^;). 
A  Hard  v.  Greasort.  81.  89. 
Allatt  V.  Carr.  46.  47. 
Allen  V.  .\gulrre.  73. 

V.  .Anderson.  .'MS. 

V.  Bi'nk.   .38.  41,  42. 

V.  Beniiet.    110. 

V.  Berrvbill.    22. 


'riFF.SAI>ES(2DED.) 


(437) 


438 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Allen  V.  Elmore,  129,  130. 

V.  Gardiner,  216. 

V.  Goodnow,  47. 

V.  Hammond,  45. 

V.  Hartfield,  123,  1^,  179,  268. 

V.  Jarvis,  69,  305,  349. 

V.  Maury,  273,  319. 

V.  Pearce,  224. 

V.  Pink,  237. 

V.  Railroad  Co.,  337.  338. 

y.  Rushford,  129,  314. 

V.  Wheeler,  200. 

V.  Woods,  275. 
Allis  V.  Billings,  22. 
Alpha  Check-Rower  Co.  v.  Brad- 
ley, 11,  257,  267. 
Alt  V.  Graff,  16. 
Althonse  v.  McMillan,  156. 
American    Forcite    Powder    Mfg. 

Co.  V.  Brady,  259. 
American  Hide  &  Leather  Co.  v. 

Chalkley  &  Co.,  153,  347,  350. 
American  Home  Sav.  Bank  Co.  v. 

Trust  Co.,  258. 
American    Iron    &    Steel    Co.    v. 

Steel  Co.,  103,  105. 
American  Oak  Leather  Co.  v.  Por- 
ter, 105. 
American    Soda    Fountain   Co.    v. 
Blue,  142. 

V.  Vaughn,  142. 
American    Sugar   Refining   Co.    v. 

Fancher,  195. 
Ames  V.  Moir,  343,  347. 

V.  Quimby,  60. 
Amis  V.  Kyle,  216. 
Amslnck  v.  Insurance  Co.,  118. 
Anchor  Mill  Co.   v.  Railroad  Co., 

34. 
Anderson  t.  Crisp,  149. 

V.  Harold,  112. 

V.  May,  .309. 

V.  ISIfg.  Co.,   112. 

V.  Morice,  160. 

V.  Read,  30,  320. 

V.  Roberts,  203. 
Andrew  v.  Babcock,  106. 
Andrews  t.   Cheney,  153.   155. 


Andrews  v.  Durant,  162. 

V.  Jackson,   177. 

V.  Schreiber,  378. 
Angier  v.  Mfg.  Co.,  141. 
Anglo-Egyptian  Nav.  Co.  v.  Ren- 

nie,  71. 
Anheuser-Busch  Brewing  Ass'n  v. 

Mason,  211. 
Anonymous,  75. 
Anschutz  V.  Miller,  187. 
Appelman  v.  Fisher,  49. 
Apperson  v.  Moore,  49. 
Arbuckle  v.  Gates,  11. 

V.  Kirkpatrick,   11. 
Archer  v.  Baynes,  106. 
Ardinger  v.  Wright,  7. 
Argentina,  The,  37. 
Argus  Co.  V.  Albany,  102,  105. 
Arkansas    Valley   Land   &   Cattle 

Co.  V.  Mann,  364. 
Armington  v.   Houston,   135. 
Armitage  v.  Insole,  276. 
Armstrong  v.    Huffstutler,    175. 

V.  Lewis,  180. 

V.  Turner,   345. 
Arnold  y.  Carpenter,  313.  342. 

V.  Delano,  313,  314,  315,  317, 
319.   325. 

V.  Iron  Works,  22. 

V.  Prout.    155. 

V.  Richardson,  184. 
Arnot  V.  Coal  Co.,  211. 
Arnott  v.  Railroad  Co.,  6. 
Artcher  v.  Zeh,  73,  99. 
Arthur  v.  Moss.  246. 
Ash  V.  Aldrich,  71. 

V.  Putnam.  331. 
Ashcroft  V.  Butterworth,  105. 

V.  Morrin,    105. 
Ashley's  Case.  190. 
Ashmore  v.  Cox  &  Co.,  308. 
Ashworth  V.  Weils,  377. 
Askey  v.  Williams,  18. 
Aspell  V.  Hosbein,  217. 
Astey  V.  Emery,  80. 
Atchison  v.  Bruff,  19. 
Atherton  v.  Newhall,  93. 
Atkin  V.  Bar\\'ick,  331. 


CASKS 
[The  flgures 

Atkins  Bros.  Co.  v.  Graia  Co.,  liGl. 
Atkinson  v.  Bell,  GG,  IGl.  'M(i. 

V.  Colli w.  114. 

V.  Donby,  22."]. 

V.  Malin^'.  272. 
Atla.s  Glass  Co.  v.  Mf;,'.  Co.,  11. 
Alwnter  v.  Clancy,  237. 

V.  IIoupli,  04.  09. 

V.  Manville.  218. 
Atwood  V.  Cobb,    105. 

V.  Lucas,  liAi),  :]49. 
-Vucrbacli  v.    Wumicriich,  299. 
Aiisustine  v.   McDowell.   l."3 
Aiiit  V.  Dustin.  307. 
Aultnian  v.  Kennedy,  237. 

V.  r^o,  304. 

V.  Stout,  378. 

V.  Tbeirer,  144. 
Aultman,  Miller  &  Co.  v.  Clifford, 
159. 

V.  Nil  son,  56. 
Aultman  &  Taylor  Co.  v.  Hetber- 

ington,  377. 
.\u.sten  V.  Craven,  148. 
Austin  V.  Cox,  2G7. 

V.  Nlckerson,   239. 
Austrian  »&  Co.  v.  Springer,  3.".". 
Avery  v.  Bowden,  30G. 

V.  Burrall.  .375. 

V.  Miller.  2.-^). 

V.  Ryan.  301. 

V.  Willson,  285. 
Avery  Mfj?.  Co.  v.  Emsweller,  274. 
Ayers  v.  Burns,  21. 
.\zeniar  v.  Casella,  2G4. 
Azemater  v.  Casella,  3G5. 

B 

Baals  V.  Stewart.  1.30. 
Babcock  v.  Bonnell.  .333. 

V.  Case.  im. 

V.  Lawson.  l'.»3. 

V.  Trice.  2<M).  371. 
Bach  V.  Smith,  215. 

V.  Tuck,   185. 
Backenstoss  v.  Stabler,  77. 
Backes  v.  Black,  340. 


CITED.  431) 

refer  to  pagei.] 

Backbaus  v.  Buells.  120. 
Bacon  v.  Cobb,  30! ». 

v.  Kccles.  .87,  91.  102.  ll.">. 

V.  Ivce.  213. 
Baebr  v.  Clark.  190. 
lUniby  V.  Walker,  09,  277,  3oO. 
Bagley  v.  Extiuguisbcr  Co.,  200. 

V.  Findlay,  34<i,  .'M.'J. 

V.  Mill  Co.,  25<>,  372. 
BaRster  v.  Karl  of  I'ortsmouth,  24. 
Bailey  v.  Ilervey,  140. 

v.   Mu;;g.   225. 

V.  Ogdcn.  88,  \H>,  KCJ. 

V.  Pardridge,  304. 

V.  Railroad  Co.,  15.5. 

v.  Smith,  159. 

V.  Sweeting,  101,  102,  113. 
Baily  v.  I)e  Cresplgny,  310. 
Bainltridge  v.   Pickering,   19. 
Baird  v.  New  York.  180. 
I'.akor  v.  Arnot,  24.5. 

v.  r.ourcicault.  157. 

v.  Burton,  214. 

v.  Deuing,  111. 

V.  McDonald,  123. 

v.   Rnilrnad  Co.,  1<;9. 

v.  Taylor,  31. 
Baldey  v.  Parker,  81.  83,  94. 
Baldwin  v.  Crow,  13.5. 

V.  Doublcday.   129. 

v.  Williams.   72. 
I'.allantyne  v.  Apploton,   124.  133. 
I'.allard  v.  Burnett.  130. 

v.  McKenna.  23. 
r.allentine  v.   Robinson.   161,  34S. 
P.allou  V.  Billings,  .■',.">:;. 
Baltimore  &  O.  R.  Co.  v.  Brydon. 

2:w. 

I'.;iiul)er  V.  Savage,  113.  114. 
l'..in<-bor  V.  Mansel.  211.  225. 
Bancroft  v.  Dumas.  213. 
B.mtield  v.  Whipple.  199. 
P.angor    Ele<-tric    Light   &    Power 

<'o.  V.  Robinson,  31. 
P.aiigs  V.  Hornick,  219. 
P.ank  of  Atchison  County   ▼.   By- 

ers,  183. 


440 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Bank  of  Litchfield  v.  Elliott,  169. 
Bank  of  Little    Rock    v.    Collins, 

138. 
Bank  of  Montreal  v.  Thayer,  184. 
Bank  of  New    Orleans    v.    Math- 
ews, 212. 
Bank  of  Rochester  v.  Jones,  171. 
Bank  of  U.  S.  v.  Bank,  30. 
Banks  v.  Mfg.  Co.,  105. 

V.  Werts,  216. 
Banner,  Ex  parte,  168. 
Bannermau  v.  White,  238. 
Banta  v.  Chicago,  73. 
Banton  v.  Shorey,  74. 
Barbe  v.  Parker,  12. 
Barber  v.  Harper,  365. 

V.  Meyerstein,  34. 

V.  Thomas,  126. 
Barclay  v.  Pearson,  222. 
Barcus  v.  Dorries,  52. 
Baring  v.  Corrie,  304. 

V.  Galpin,   11. 
Barkalow  v.  Pfeiffer,  87. 
Barker  v.  Dinsmore,  53,  196. 

V.  Hibbard,  18. 

V.  Hodgson,  309. 
Barnard  v.  Campbell,  193,  194. 

V.  Kellogg,  253,  254,  255,  264. 

V.  Poor,  128. 

V.  Railroad  Co.,  49. 

V.  Yates,  255. 
Barnes  v.  Freeland,  331. 

V.  Hathaway,  24 

V.  McCrea,   8. 

V.  Shoemaker,  52,  56,  57. 

V.  Smith,  218. 

V.  Toye,   19. 
Barnett  v.  Barnett,  184. 
Barnum  v.  Cochrane,  247. 
Barr  v.  Gibson,  45,  122. 

V.  Logan,  343,  361,  367. 

V.  Myers,  275. 

V.  Reitz,  272,  273. 
Barrett  v.  Allen,  279. 

V.  Delano,  224. 

V.  Goddard,  315. 

V.  Warren,  28. 


Barrie  v.  Jerome,  176. 
Barron  v.  Alexander,  175. 

V.  Mullin,  345. 
Barrow,  Ex  parte,  333. 

V.  Arnaud,  349,  354. 

V.  Window,  123. 
Barry  v.  Cavanagh,  349. 

V.  Coombe,  106. 

V.  Croskey,  184. 
Bartlett  v.  Bailey,  16,  17. 

V.  Blanchard,  358. 

V.  Jewett,  293. 

V.  Purnell,  114. 
Barton  v.  Groseclose,  138. 

V.  Kane,  159. 

V.  McKelway,  279. 
Bassett  v.  Brown,  191,  197. 

V.  Camp,  96. 
Bassinger  v.  Spangler,  201. 
Basten  v.  Butler,  376. 
Batchelder,  In  re,  316,  318,  319. 
Bates  V.  Chesebro,  99. 

V.  Clifford,   217. 

V.  Smith,  48. 
Batsford  v.  Every,  216. 
Battle  Creek  Valley  Bank  v.  Bank, 

48. 
Batturs  v.  Sellers,  112. 
Baum  V.  Holton,  177. 
Ranraann  v.  James,  109. 
Baumbaeb  Co.  v.  Gessler,  258. 
Baxter  v.  Earl  of  Portsmouth,  24. 
Bayard  v.  Shunk,  303. 
Bayne  v.  Hard,  155. 

V.  Wiggins,  109. 
Bayonne    Knife    Co.    v.    Umben- 

hauer,  326. 
Beall  V.  White,  48. 
Reals  V.  Olmstead,  256. 

V.  See,  23. 
Roan  V.   Smith,  200,  203. 
Reardsley  v.  Smith,  60. 
Beard  v.  Webb,  26. 
Beatty  v.  Lumber  Co.,  290. 
Beauchamp  v.  Archer,  123. 
Beaumont  v.  Brengeri,  87,  95. 
Beavan  v.  McDonnell,  22. 


CASKS   CITICD. 
[The  flgures  refer  to  pages.] 


411 


Becker  v,  ITallpnrtoii,  n.'VJ. 
Ik't'kwlth  V.  Talbof,  l(t;>. 
lieoho  V.  Hatfield,  1^». 
Hct'lcr  V,  Young,  18,  'JO.  21. 
Heeinan  v.  Bauta,  37S. 
Beer  v.  Walker,  2(51,  2(;2. 
Beers  v.  Cruwell,  72. 

V.  Williams,  2.")."). 
I?eetle  v.  Andorson,  IS.I. 
Ik'gbie  V.  Si'wage  Co.,  :'.nn. 
Beggs  V.  Brewing  Co..  27,8. 
Bobu  V.  Burness,  228,  30G,  372 
Beidler  v.  Crane,  0. 
Belcher  v.  Costello.  170,  177. 

V.  Sellard.s,  .'',(H». 
Beldlng  v.  Frank  l.ind.  170. 
Bell  V.   Cafforty,  1!)4. 

V.  Campbell,  223. 

V.  Dagg,  302. 

V.  Ellis.  180. 

V.  Greenwood,  59. 

V.  Kaufman,   ISI. 

V.  Mills,  2o7,  375. 

V.  Moss,  325. 

V.  Offutt,  340. 

V,  Rej-nolds,  356. 
Belleville  Pump   &   Skein  Works 

V.  Samuelson,  195. 
Belt  V.  Stetson,  299. 
Benieut  v.  Smith,  101. 
Bemis  v.   Leonard,  279. 
Bench  v.  Sheldon,  176. 
Benedict  v.  Field,  310. 

V.  Schaettle,  325,  326. 
Benesch  v.  Well,  194. 
Benford  v.  Schell,  273. 
Beniiiger  v.  Corwin,  175. 
Benjamin  v.  Railroad  Co.,  49. 
Bennett  v.  Adams,  01. 

V.  Buchan,    241. 

V.  Hull,  &i. 
Bent  V.  Cobb.  ll."?.  114. 

V.  Manning,  20. 
Bentall  v.  Burn,  90. 
Bergan  v.  Magnus,  123. 
r.erger  v.  State,  156. 
Bergman  v.  Railroad  Co.,  105. 


Berk.son  v.  Ileldman,  185. 
r.ermltson    v.     Strang,    327,    328, 

.'529,   330. 
Bernhardt  v.  W.ills.  73. 
Berolles  v.  Ramsay.  IS. 
Berry   v.   Nail,   2S<». 
Berlel.son  v.  Bower,  123. 
Bert  hold  v.  Mfg.  Co.,  290. 
Bessemer  Steel  Co.,  In  re,  307. 
Best  V.  Flint,  .".71. 
Hethell  v.  Clark.  IVA. 
I'.ethel   Steam-Mill   Co.   v.  Brown, 

127,  273. 
Bettini  v.  Gye,  228. 
Beurmann  v.  Van  Buren,  199. 
r.ianclii  v.  Nash,  9. 
Bibb  V.  Allen,  103,  115. 
Bickel  V.  Sheets,  211. 
Bicking  v.  Stevens,  50. 
Bi.knail   v.   Waterm.in.   .'".OS. 
Biddlecombe  v.  Bond,  32.5. 
Bierce  v.  llutehins,  140. 
Biermau  v.  Mills  Co..  2.59,  375. 
Bigge  V.  Parkinson.  2<;2,  207. 
Bigger  v.  Bovard,  3ii'''. 
Biggs  V.  Barry,  ISO.  332. 

V.  Evans.  ;',2.  4o. 
Itigler  V.  Fliekinger,  1*^2. 
Bigley  v.  Risher,  59,  01. 
Bill  V.  Bament,  83,  80.  t>4,  102. 

V.  Fuller.  142.  201. 
Billin  v.  lleukel,  89. 
r.illmeyer  v.  Wagner,  3.58. 
Bingham   v.   Maxcy,   245. 
Bird  V.  Brown,  325,  320.  3.33, 

V.  Muhlinbrink.  <!'.». 

V.  Munroe,  101,  102.  118. 

V.  Poulter,    114. 
Birks  V.  French,  216. 
Bisbee  v.  McAllen.  214. 
Bish  V.  Beatty,  177. 
Bishop  v.  Minderhout.  142. 

V.  Shillito,    1.32. 
Bissell  V.  Bakom,  123. 
Black  V.  Del  bridge.  Brooks  &  Fish- 
er Co.,  2t>9. 

V.  Henry  G.  Allen  Co.,  4. 


Co. 


^yal•- 


442 


Black  V.  Webb.  11. 
Blackburn  v.  Reilly,  289. 
Blackman  v.  Pierce,  331. 

V.  Fairbanks,    Morse    & 
238,  267. 
Black  River  Lumber  Co.  v 

ner,    161,   348,   351. 
Blaess  v.  Nichols  &  Shepard  Co., 

237. 
Blaisdell  v.  Holmes,  24. 
Blaisdell  &  Co.  v.  White  &  Co., 

173. 
Blake  v.  Sawin,  200. 
Blakeuey  v.  Goode,  73. 
Blanchard  v.  Cocke,  49. 
Blattenberger  v.  Ilolman,  362. 
Blenkinsop  v.  Clayton,  98. 
Bliss  Co.  V.  Light  Co.,  275 
Bliss  V.  Sickles,  181,  185. 
Block  V.  McMurry,  221,  223. 
Blood  V.  Goodrich,  108. 
Bloom  V.  Richards,  215. 
Bloomingdale  v.  Chittenden,  15. 

V.  Railroad  Co.,  326,  338. 
Bloxam  v.  Morley,  315. 

V.  Sanders,  268,  269,  301,  315, 
316. 
Bloxsome  v.  Williams,  216. 
Bloyd  V.  Pollock.  IM,  1.56.  292. 
Blumenthal  v.   Stable,  359. 
Blunt  V.   Little,  123. 
Blydenburgh  v.  Welsh,  175,  277. 
Blythe  v.  Speake,  179. 
Boardman  v.   Cutter,  72. 

V.  Spooner,  107. 
Boaz  V.  Mfg.  Co..  184. 

V.  Schneider,  129. 
Bog  Lead  Min.  Co.  v.  Montague 

85. 
Bohn  Mfg.  Co.  v.  Hynes,  315. 
Bohtlingk  v.  Inglis,  .S28. 
Boles  V.  Merrill,  177,  178,  197. 
Bolin  V.  Huffnagle,  328. 
Bollinger   v.   Wilson,    22.5. 
Boll  in  V,  Hooper,  217. 
Bollman  v.  Burt,  289. 
Bolton  V.  Railroad  Co.,  330. 


CASES   CITED. 
[The  figures  refer  to  pages.] 

Bolton  V.  Riddle.  276. 
Bond  V.  Greenwald,  126. 
Bonham  v.  Hamilton,  124. 
Bonito  V.  Mosquera,  41,  4?. 
Boody  V.  McKenney,  17. 
Boorman  v.  Nash,  350. 
Booth  V.  Mill  Co.,  309,  359,  360. 

V.  Tyson,  57.  284. 
Boothby  v.  Plaisted,  264. 

V.  Scales,  267,  295,  369. 
Borden  v.  Borden,  305. 
Borland  v.  Bank,  59. 
Borrekins  v.  Bevan,  250. 
Borrowman  v.  Drayton,  248. 

V.  Free,  159. 
Borrowscale  v.  Bosworth,  88. 
Boston  Ice  Co.  v.  Potter,  52. 
Boston  &  M.  R.  Co.  v.  Bartlett,  51. 
Bostwick  V.  Leach,  76,  79. 
Boswell  V.  Green,  128,  129. 

V.  Kilborn,  126. 
Bouchell  V.  Clary,  21. 
Boughton  V.  Standish,  299. 
Boulter  v.  Arnott,  317. 
Boulton  V.  Jones.  52. 
Boutelle  V.  Melendy,  217,  222. 
Bowdell  V.  Parsons,  307. 
Bowditch   V.   Insurance   Co.,   213, 

223. 
P>owen  V.  Burk,  132,  317. 

V,  Sullivan,  58. 
Bower  v.  Fenn,   182. 
Bowers  v.  Anderson,  90. 
Bowes  V.  Shand,  248. 
Bowker  v.  Hoyt,  57,  284. 
Bowman  v.  Conn,  82. 
Bowry  v.  Bennet,  210. 
Bowser  v.  Birdsell,  342. 
P.oyce  V.  Washburn,  74. 
Boyd  V.  Eaton,  224. 

V.  Gunnison,  277. 

V.  Wilson,  204. 
P.oydell  V.  Drummond.  109. 
Boyden  v.  Boy  den,  17. 
Boyer  v.  Berryraan,  23. 
Boynton  v.  Page,  216. 

V.  Veazie,  274. 


CAsi:.s 

[The  flgurea 

I  Ira  bin  v.  Hyde,  100. 

liradilock  (ilass  Co.  v.  Irwin,  l."))!, 

29-'. 
I'.radford  v.  Manly,  2t^).  .".f.;i. 
Hradiey  v.  Holdswoitli.  T_'. 

V.  Kinp,    28'J. 

V.  Michael,    313. 

V.  Pratt,  21. 

V.  Ilea.  217,  375. 

V.  Wheeler,   120. 
Brady  v.  Cassidy,  284,  2S5. 

V.  Whitney,    58. 

V.  Yost.  301. 
Bragp  V.   Beers,  275. 

V.  Morrill,  259. 
Bra  itch  v.  Guelick,  224. 
Braley  v.  Powers,  183. 
Branan  v.  Railroad  Co.,  333. 
Brand  v.  Focht,  84. 

V.  Henderson,  349. 
Brandon  v.  Neshitt,  212. 
Brandt  v.   Bowlby,   1G5. 
Itranijran  v.  Ilendriclcson,  120. 
Branson  v.  Turner.   241,  3G0. 
Brantley  v.  Wolf.  15. 
P.raunn  v.  Keally.  225. 
Braun  v.  Rendering  Co.,  9. 
Brawley  v.  U.  S..  2S5.  286. 
Brayshaw  v.  Eaton,  19. 
Breed  v.  Cook,  303. 
Breen  v.  Moran,  257,  374,  375. 
Brett  V.  Carter,  48. 
Bretz  V.  Diehl,  7. 
Brewer  v.  .Vrantz,   186. 

V.  Hnrst-Iiachmund    Co.,    100, 

no. 

Brewer   Lumber   Co.   v.    Railroad 

Co..  310.  .325.  329. 
Brewster  v.  Banta.  222. 

V.  Burnett.    191. 

V.  Ivoitl).  97. 
Brifker  v.  Hughes,  77. 
Briok  Presbyterian  Church  v.  New 

York.  310. 
Bridpeford  v.  Ad:>ms.   ISO. 

V.  Crocker.   .340.   343. 
Briprp  V.  Hilton.  374. 
BriRcs  V.  LlRht  Boat.  162. 


cni:i>.  41.3 

refer  to  pages.] 

BriK;^s  v.  McKwen.  1.35. 

V.  Morgan,  28-1. 

V.  Munchon,   lO^i, 

V.  Weston,  201. 
Itriuhani  v.  Fayerweather.  23. 

V.  Hibbard,    154. 

V.  Retelsdorf,   261. 
Brindley  v.  Slate  Co.,  328. 
Itrinsniead  v.  Harrison,  58. 
I'.ristol  V.  Mente,   105. 
Britain  v.   Rossiter,    118. 
Itriiisli    Columbia    &    V.    I.    Spar 
Lumber  &  Sawmill  Co.   v.  Net- 
lli'ship,  35S,  .3.59. 
r.riti.sh    Fuipiro    Shipping    Co.    r. 

Somes,  313. 
Brit  tain  v.  McKay,  77. 
r.roadwater   v.   Darne,   24. 
I'.iofk  V.  Knower,  84. 

V.  O'Donnell,  123. 
I'.rnrkway  v.  .Jewell,  24. 
Brodhead  v.  Reinbald.  104. 
I'.r.isiden   v.   Marriott.   2.33. 
Bronson  v.  Wiman,  08. 
Brooke  Iron   Co.  v.  O'Brien,  332. 

.330. 
Brooker  v.  Scott.  18.  10. 
Brooks  V.  Marbury,  199. 

V.  Paper  Co..  ISO. 

V.  Powers.  200,  204. 
Brower  v.  Peabody.  .35. 
Brown  v.  Bellows,  59,  60. 

V.  Berry.    1.59. 

V.  Biseiow.   24  L 

V.  Billinjrfon.  8. 

V.  Blunt.   187. 

V.   B.rnwuincr.  215. 

V.  Duncan.  214. 

V.   Foster.  234.  298.  374. 

V.  .Toluison.  279. 

V.  Lench.  187. 

V.   Roland.  79. 

V.  Sanborn.  70.  82. 

V.  Sliarkey.   355. 

V.   Warren.  97. 

V.   Wliipple.    109. 
Browne  v.  Hare.  1.55.  ia5.  100.  1^8. 
Brownfield  v.  Johnson,  150.  282. 


444 


CASES   CITED. 
[The  figures  refer  to  pages. 1 


Browning  v.  Magill,  29. 

V.  Morris,  223. 
Brownlee  v.  Bolton,  295,  340. 
Brown  &  Haywood  Ck).  v.  Wun- 

der,  69. 
Brua's  Appeal,  218. 
Bruuer  v.  Strong,  178. 
Bryan  v.  Lewis,  49. 
Bryant  v.  Isburgh,  369,  370. 

V.  Pember,  362. 

V.  Richardson,    18. 

V.  Thesing,  363,  365. 

T.  Whitcher,  28,  30. 
Buclieye-Buggy    Co.    v.    Montana 

Stables,  298. 
Buckley  v.  Furniss,  321,  326,  330. 

V.  Humason,   215. 
Buckman  v.  Levi,  292. 
Buckstaff  V.  Russell,  237. 
Bucy  V.  Agricultural  Works,  266. 
Buddie  V.  Green,  50. 
Buel  V.  Miller,  108. 
Buffalo  Barb- Wire  Co.  v.  Phillips, 

371. 
Bnffington  v.  Gerrish,  194. 
Buffum  V.  Deane,  30. 
Bugg  V.  Shoe  Co.,  181. 

V.  AVertheimer-Schwartz    Co., 
179. 
Bughman  v.   Bank,  179. 
Bulkley  v.  Morgan,  188. 
Bull  V.  Griswold,  77. 

V.  Robinson,   261,  293. 
Bullitt  V.  Farrar,  183. 
Bullock  V.  Tschergi,  94. 
Bunch  V.  Lumber  Co.,  77. 

V.  Weil   Bros.   &   Bauer,   260, 
263. 
Bunday  v.  Machine  Co.,  135. 
Bunge  V.  Koop,  307. 
Bunney  v.  Poyntz,  315. 
Burchfield  v.  Moore,  362. 
Burr-hinell   v.  Hlrsh,   180,   184 
Burch  V.  Spencer.  262. 
Burdick  v.  Sewell,  5. 
Burgess    Sulphite    Fibre    Co.    v. 

Broomfield,  106. 
Burghall  v.  Howard,  323. 


Burghart  v.  Hall,  20. 
Burke  v.  Dunn,  313. 

V.  Shannon,  128. 
Burke  &  Co.,  In  re,  331. 
Burnby  v.  Bollett,  261. 
Burnell  v.  Marvin,  138. 

V.  Robertson,   205. 
Burnett  v.  Heusley,  176,  255,  265. 

V.  Stanton,  255. 
Burnham  v.  Kidwell,  23. 
Burnley  v.  Tufts,  142. 
Burns  v.  Mahannah,  177. 

v.  Real  Estate  Co.,  108. 
Burrell  v.  Highleyman,  70. 
Burrill  v.  Stevens,  180. 
Burroughs  v.  Guano  Co.,  187. 
Burrows  v.  Whitaker,  129. 
Burt  v.  Dewey,  247. 

V.  Myer,  218. 
Burton  v.  Baird,  156. 

V.  Gage,   99. 

V.  Stewart,  191,  197. 
Burwell  &  Dunn  Co.  v.  Chapman, 

56. 
Buschman  v.  Codd,  176,  183. 
Bushel  V.  Wheeler,  88. 
Bush  V.  Holmes,  84. 
Busk  V.  Davis,  148. 
Buss?y  V.  Barnett,  122. 
Bussing  V.  Rice,  194. 
Buswell  V.  Bicknell,  146. 
Butler  V.  Butler,  305,  351. 

V.  Dodsou,  140. 

V.  Dorman,  304. 

V.  'Haight.  303. 

V.  Hildreth,  188. 

V.  Lee,  217. 

V.  Moore,  198,  203,  379. 

V.  Northumberland.    264. 

V.  School   Dist.   144. 

V.  Thomson,  115. 

V.  White,  199. 
Butterfield  v.  Burroughs,  241. 

V.  Lathrop,  7. 
Butterick  Pub  Co.  v.  Bailey,  11. 
Butters  v.   Haughwout,  195. 
Butterworth  v.   McKinly,   161. 


CASKS   CITKn. 
[The  Ogures  refer  to  pagen.] 

Button  r.  Triulor,  140. 
Hyassco  v.  lU'csc,  7»>. 
layers  v.  Chnpin,  257,  nn.">. 
Hylos  V.   Collcr.  120. 
Kyrd  V.  Hall,  170. 

V.  Rautumu,  l'.t7. 
Byrnes  v.  Volz,  198.  203. 
Byrne  v.  Van  Tlenhoven,  51. 


44." 


Cabaness  v.  Holland,  ISO. 
Cabeen  v.  Canipholl.  ;5;>1. 
Cable  Co.  v.  Wa-si'^izif,',  130. 
Cabot  V.  Christie,  1S;{. 
CadoKan  v.  Kennott.  198. 
Caerleon  Tin  Plate  Co.  v.  Hughes. 

117. 
Cahen  v.  Piatt,  354,  356. 
Cahn  V.   Pockett's,   etc.,   Co.,   41, 

170. 
Cain  V.  MoGulre,  76. 
Cairns  v.  Paso.  41,  43. 
Calahan  v.  Babeoek,  326. 
Calais  Steamboat  Co,  v.  Van  Pelt, 

32. 
Calcutta  &  B.  S.  Nav.  Co.  v.  Do 
Mattos,  122,   127,  155,  15G,  34.". 
Caldwell  v.  Ball,  33G. 

V.  Walters,   30. 
California   Canneries  Co.   v.   Sea- 

tena,  111. 
Calkins  v.  Falk,  103,  110. 
Callajxhan  v.  Myers.  4,  120. 
Callanan  v.  Chapin,  ]0(). 
Callmeyer  v.  Mayor,  28G. 
Call  V.  Seymour,  l.W. 
Camden  Consul.  Oil  Co.  v.  Schlens, 

3."). 
Cameron  v.  Wells,  278. 
Camp  V.  Ilamliu,  340,  ."^50. 

V.  Wood,  .'?<). 
Campbell  v.  Atherton,  13.j. 

V.  Board,    l.'.^. 

V.  Fleming.   190. 

V.  Moran  Bros.  Co.,  200. 

V.  Seirars.  214. 

V.  Young,  217. 


('aiiil)bell    Printing    Press    Co.    v. 

Tliorp.  234. 
f'ainpbell    Printing   Press   fc   Mfg. 
Co.  V.   Marsh,   192. 

V.  Publl.shing  Co.,  140. 

V.  Walkrr.   135. 
<'ainr)i()n  v.   Marston,  2»i0,  37.'!. 
Canada  v.  Canaila,  192. 
Cauda  V.  Wick,  3<>7. 
Cannan  v.  Bryce,  210. 
Cantiiie  v.  Phillips,  19. 
Caix'hart  v.  Improvement  Co.,  l.">7. 
Ciirdwell  v.  MeClflland,  175. 
<"arleton  v.  Jenks.  298. 

V.  r.rom»tard.  238,  2.';9,  2G1,  37.">. 

V.  Woods.  224. 
Carlos  F.  Hoses.  Tlie,  37. 
("aniian  v.  Smick,  04. 
("arnahan  v.  Bailey,  ISO. 
Caroiidelet  Iron  Works  v.  Moore. 

299. 
Carpenter  v.  Carpenter,  15. 

V.  Galloway.  .82,  108. 

V.  (Iraham,    149. 

V.  McClure,  203. 

V.  Uodgers.  24. 

V.  Scott,  i:«. 
Carr  v.  Briggs.   199. 

V.  Clough,  15. 

V.  Duvall.    51. 
<  'arrier  v.  Sears,  22. 
Carroll-Porter  Boiler  &  Tank  Co. 

V.  Machine  Co.,  350. 
Carter,  In  re,  102. 

V.  Crick.  203. 

V.  Harden,   18.3. 

V.  Toussiiint.  !).5. 

V.  Wallace.    142. 

V.  Willard.  2f»7. 
Cartwright  v.  Wilmerding,  41,  42. 

43. 
Can'er  v.  Lane.  84. 
Ca.se  V.  Croon.  279. 

V.  Hall,  182. 

V.  Stevens.  377. 
Case  Throshing  Mach.  Co.  v.  Ha- 
ven, 377. 


446 


Cason  V.  Cheely,  64,  60. 
Cassidy  v.  Le  Fevre,  358. 
Castanola  v.  Railroad  Co.,  336. 
Castle  V.  Sworder,  83,  90,  94,  95, 

294. 
Caswell  V.  Hunton,  177. 
Cathcart  v.  Keirnaglian,  114,  115. 
Catlin  V.  Haddox,  17. 

V.  Jones,  269.  280. 

V.  Tobias,  285. 
Catling  V.  King,  103. 
Caton  V.  Caton,  112. 
Catterall  v.  Hindle,  304. 
Caulkins  v.  Hellman,  83,  89,  91. 

92. 
C.  Aultman  &  Co.  v.  Olson,  140. 

V.  Silha,  135. 
Cave  V.  Hastings,  109. 
Cayuga  County  Nat.  Bank  v.  Dan- 
iels, 170. 
Cefalu  V.  Fitzsimmons-Derrig  Co., 

294. 
Central  Litb.  &  Eng.  Co.  v.  Moore, 

13. 
Central  Trust  Co.  v.  Improvement 
Co.,  49. 

V.  Mfg.  Co.,  137,  375. 
Chadsey  v.  Greene,  241. 
Chalmers,  Ex  parte,  308,  322. 
Chamberlin    v.    Fuller,    176,    187, 

192,  197. 
Chamberlyn  v.  Delarive,  99. 
Chambers  v.  Davidson,  314. 

V.  Lancaster,  298. 
Champion  v.  Plummer,  103. 
Cbamplin  v.  Rowley,  57,  284. 
Champney  v.  Smith,  30. 
Chancellor  v.  Wiggins,  246. 
Chandelor  v.  Lopus,  238,   251. 
Chandler  v.  Coe,  104. 

V.  Simmons,    15. 
Chanter  v.  Hopkins,  55,  230,  247, 

255,  258. 
Chaplin  v.  Rogers,  88,  272. 
Chapman  v.  Cole,  28. 

V.  Ingram,  340,  349. 

V.  Morton,  298. 


CASES   CITED. 
[The  figures  refer  to  pages.] 

Cliapmau  v.  Murch,  238. 
v.  Railroad  Co.,  351. 
V.  Sbepard.  149. 
V.  Speller,  245. 
V.  Weimer,  47. 
Chappie  v.  Cooper,  18. 
Charles  v.  Carter,  294. 
Cbas.  F.  Orthwein's  Sons  v.  Ele- 
vator Co.,  165. 
Charles   P.   Kellog   Co.   v.   Holm^ 

184. 
Charlton  v.  Real  Estate  Co.,  102. 
Chase  v.  Burkholder,  224. 
v.  Denny,  47. 
v.  Ingalls,  138. 
V.  Washburn,  7. 
Chatham  Furnace  Co.  v.  Moffatt,. 

183. 
Chemical  Electric  Light  &  Power 

Co.  V.  Howard,  362. 
Cheney  v.  Duke,  211. 
Cheshire  v.  Barrett,  17. 
Chestnut  v.  Hai'baugh,  221. 
Chew  v.  Bank,  22. 
Chicago  V.  Greer,  349. 
Chicago  Bldg.  &  Mfg.  Co.  v.  Bar- 
ry, 351. 
Chicago  Dock  Co.  v.  Foster,  194. 


Chicago     R.     Equipment     Co.     T. 
Bank.  135. 

Chickering  v.  Pastress,  11. 

Chidell  V.  Galsworthy,  46,  47. 

Chinery  v.  Viall.  3.39.  364. 

Chisholm  v.   Eisenbuth.  187. 

Chrysler  v.  Canaday,  177. 

Church  v.  Muir,  203. 
V.  Proctor,  220. 

Churchill  v.  Bank.  279. 
V.  Holton,  284,  285. 

Chynoweth  v.  Tenney,  47. 

Cincinnati  Cooperage  Co.  v.  Gaul^ 
181. 

Cincinnati  P.  &  S.  Co.  v.  Thomp- 
son, 365. 

Cincinnati  Safe  Co.  v.  Kelly,  135. 

City  Nat.  Bank  v.  Tufts,  136. 

City  of  Carthage  v.  Duvall,  158. 
V.  Munsell,  158. 


CASKS    (  ITKD. 
[The  figures  refer  to  pages.] 


44' 


City    of    Kli/.abrth    v.    I'itz;,'t'rald, 

Clartin  V.  Carponter,  74. 
Clatliii   V.   Kailroad   Co.,   154. 
ClaKliorn  v.  Lingo,  240. 
Clapi)  V.  Sohuier.  IVM. 

V.  Tbayer,  2S0. 
Clark  V.  Baker,  282,  283,  3G3,  3G4. 

V.   Rrisht,   134. 

V.  Biilmer,  71. 

V.  Draper,  315. 

V.  Creeley,  123. 

V.  (Juost,  7,". 

V.  Labreche,  S8. 

V.  Mar.siglia,  351. 

T.  Moore,  284. 

V.  Muinford,  GG. 

V.  Nichols,  G7. 

V.   Sniitb,   304. 

V.  Stool  Works,  288. 

V.  William  Muiiroe  Co.,  181. 
Clarke  v.  Brown,  222. 

V.  Dickson,  190,  191. 

V.  Foss,  50. 

V.  Ilutchlns,  292,  293. 

v.  Sponce,  161. 

V.  Westrope,  60. 
Clarkson  v.  Stevens.  1G2. 
Clason's  Ex'rs  v.  Bailey,  110,  111. 

112,  115. 
Clayton  v.  Andrews,  63. 
Clay  V.  Yates,  GO. 
Clem  V.  Railroad  Co..  181. 
Clemens  v.  Clemens,  203. 
Clemenston  v.  Railroad  Co.,  335. 
Clement  v.  Dryl)road.  50. 
Clement   &   Ilawkes   Mfg.    Co.   v. 

Meserole,  307. 
Cleveland  v.  Sterrett,  361. 

V.  Williams.  120. 
Cleveland  Linsood  Oil  Co.  v.  A.  F. 

Buolianan  &  Sons.  257,  372. 
Cleveland  Mach.  Works  v.   Lang. 

136. 
Cleveland  Punch  &  Shear  Works 

v.  Carbon  Co.,  2.58. 
Cleveland  Rolling  Mill  v.  Rhodes, 
283.  288,  290. 


ClifTord.  In  re.  07. 

Cioke  v.  Slia froth.  8. 

<'lore  v.  Rdbin.sou,  .'541. 

(lose  V.  Crossland,  244,  245,  246, 

247. 
Clougli   V.    Railroad   Co.,   44,    188. 

ISO.  ]0U.   107. 
Coates  V.  Wilson,  18. 
Coate  V.  Terry,  115. 
(.'obb  V.  Billings,  215. 

V.  Lumber  Vo..   109. 
Cobbold  V.  Caston.  SO. 
Coburn  V.  Odoll,  224. 

V.  Pickering,  2<>4. 
Cochrane  v.  Moore.  12. 
Cochran  v.  Stewart.  104. 
Coc'kburn  v.  Lumber  Co..  354.  ,359. 
Cockoroll  V.  .\uiompte,  286. 
Cockrell  v.  Thompson.  218. 
Coddington  v.  Goddard,  lOG,  112. 

115. 
Coe  V.  Tough.  109. 
Cotlin  V.  Bradbury,  84. 

V.  Holllstor,  181. 

V.  State.  3.59. 
( "ofTman  v.  Hampton.  81. 
Cogar  V.  Luml)or  Co.,  244. 
Cogel  V.  Knisoloy.  175. 
Coggill  V.  Railroad  Co..   1.36. 
Cohn  V.  Annnidown.  244,  245. 

V.  Broadhead.  181. 
Cole  V.  Bank.  31.  32,  37,  40. 

V.  Berry.  132. 

V.  Bryant,  1.54. 

V.  Cassidy.  182. 

V.  nines,   130. 

V.  Kerr,  48.  280. 

V.  INIann,  130. 

V.  Smith.  177. 
Coleman  v.  Bank.  104. 

V.  Gibson,  88. 
Colgate  V.  Pennsylvania  Co.,  168. 
Collins  v.  Conloy,   176. 

V.  Do!ap<^)rte.  349. 

V.  Evans.  182. 

V.  Jarkson.   177. 

V.  Ralli.  43. 

V.  Townsend.  197. 


448 


Col  Iyer  v.  Isaacs,  48. 

V.  Moulton,  351. 
Colonial  Bank  v.  Whinney,  72. 
Colonial  Ins.  Co.  v.  Insurance  Co.. 

57,  160,  284. 
Columbian    Iron    Works    &    Dry 

Dock  Co.  V.  Douglas.  251. 
Columbia  Rolling-Mill  Co.  v.  Ma- 
chine Co.,  144. 
Columbus  Buggy  Co.,  In  re,  10. 

V.  Turley,  136. 
Colvin  V.  Williams,  73. 
Combs  V.  Bateman,  99. 
Comer  v.  Cunningham,  133,  136. 
Comey  v.  Pickering,  203. 
Commercial  Bank  v.  Armsby  Co., 
37. 

V.  Hurt,  35,  36,  43. 

V.  Lee,  36,  43. 
Commercial  Nat.  Bank  v.  Gillette, 
149. 

V.  Pirie,  195. 
Com.  V.  Clark,  12,  13. 

V,  Devlin,  123. 

V.  Fleming,   158. 

V.  Parlin  &  Orendorff  Co.,  10. 

V.  Ray,  111. 
Comstock  V.  Sanger,  159,  374. 

V.  Scales,  48. 
Conard  v.  Insurance  Co.,  207. 

V.  Railroad   Co.,    149. 
Conaway  v.  Sweeney,  113. 
Concord  Coal  Co.  v.  Ferrin,  58. 
Conderman  v.  Smith,  48. 
Cougar  V.  Chamberlain,  237. 

v.  Railroad  Co.,  156. 
Congdon  v.  Kendall,  157. 
Congress  &  Empire  Spring  Co.  v. 

Knowlton,  222. 
Congreve  v.  Evetts,  46,  47. 
Conley  v.  Sims,  214. 
Connor  v.  Henderson,  191. 
Conrad  v.  Fisher,  313,  315,  317, 
318. 

V.  Smith,  201. 
Constantia,  The,  326. 


CASES   CITED. 
[The  figures  refer  to  pages.] 

Consmners'    Ice   Co.    v.    Webster, 

Son  &  Co.,  52. 
Conyers  v.  Ennis,  330. 
( "ook  V.  Brandeis,  343. 

V.  Corthell,  47. 

V.  Deaton,  19. 

V.  Ferral's  Adm'rs,  269 

V.  Forker,  217. 

V.  Oilman,  191. 

V.  Periy,  317. 
Cooke  V.  Millard,  68,  83,  91. 

V.  Oxley,  51. 
Cookson  V.  Swrie,  200. 
Cool  V.  Lumber  Co.,  74. 
Coolidge  V.  Brigham,  190. 

V.  Goddard,  177. 

V.  Melvin,  204. 
Coombs  V.  Gorden,  30. 

V.  Railroad  Co.,  87,  90. 
("oon  V.   Spaulding,  277. 
Cooper,  Ex  parte,  3.30,  332. 

V.  Bill,  97. 

V.  Elston,  64,  65,  84. 

V.  Payne,  238. 

V.  Shepherd,  58. 

V.  Shuttleworth,  60. 

V.  Willomatt,  27,  40. 
Copas  V.  Provision  Co.,  262. 
Cope  V.  Rowlands,  213,  214,  215. 
Cope's  Estate,  In  re,  56. 
Copland  v.  Bosquet,  123. 
Coplay  Iron  Co.  v.  Pope,  374. 
Corbett  v.  Wolford.  88. 
Cordes  v.  Miller,  310. 
Corning  v.  Abbott,  214. 
Cornwall  v.  Haight,  313. 

V.  Hanson,  339. 
Cortelyou  v.  Lansing,  9, 
Cortland   Mfg.   Co.   v.    Piatt,    184, 

189. 
Cort  V.  Railroad  Co.,  305,  307,  351. 
Corwin  v.  Benham,  245. 
Cory  v.  Building  Co.,  358,  359. 
Cothran  v.  Ellis,  218. 
Gotten  V.  McKenzie,  224. 


CASLS  crncD. 

[The  figures  refer  to  pagea.] 


449 


Cotterlll  V.  Stpvons,  KK>. 
Cotzlmusiou  V.  Siiiiou,  IS'J. 
Council  Bluffs  Iron  Wurks  v.  Cuji 

pey,  27G. 
Courtis  V.  Cane,  2S. 
Courtney  v.  Mfp.  Co.,  184. 
Courtriglit  v.  I>x>uard.  140. 
Cou.stoii  V.  Cliapinan,  81,  L'Gl. 
Covell  V.  Hill,  42. 

V.  Hitclicock,  331. 
Coventry  v.  Gladstone,  333. 
Covin  V.  Hill.  31. 
Cowan  V.  Mfj,'.  Co.,  133. 
Cowell  V.  In.surance  Co.,  118. 
Cowie  V.  Remfry,   117. 
Cowley  V.  Smyth,  182,  183. 
Cox  V.  Burns.  331. 

V.  Long,  'Siio,  371. 
Coxe  V.  Heisloy,  254. 
Cox  Shoe  Mfg.  Co.  v.  Adams,  171). 
Coyle  V.  Baum,  2o8,  378. 
Coyne  v.  Avery,  278. 
Craft  V.  Parker,  Webb  &  Co.,  202. 
Crafts  V.  Carr,  18. 
Cragin  v.  O'Connell,  322. 
Craig  V.  Harper,  51. 
Crane  v.  Dock  Co.,  27,  29. 

V.  Elder,    177. 

V.  Wilson,  1.59. 
Crane  Co.  v.  Construction  Co.,  377. 
Cranson  v.  Goss,  221. 
Crapo  V.  Kelly,  272. 
Crawcour,  Ex  i)arte.  135. 
Crawford  v.  Eorristall,  205. 

V.  Neal,    200. 

V.  Scovell,  23. 
Crawshay  v.  Eades,  329. 
Cream   City   Glass   Co.   v.   Fried- 
lander,  295. 
Cream  City  Hat  Co.  v.  Tol linger. 

185. 
Creekmore  v.  Baxter,  22. 
Creighton  v.  Comstock,  286. 
Crenshaw  v.  Slye,  240. 
Crescent    Hosiery    Co.    v.    Cotton 

Mills,   355. 
Cressey  v.  Sabre,  40. 

TiFF.SALKS(2DEn.)— 29 


<  'reswell  Banch  &  C.  Co.  v.  Murtln- 

dale,    L'Slt. 

<  'rist  V.  AruKtur,  307. 
'"rittenden  v.  I'oscy,  240. 
("rocker  v.   Gul lifer,   140. 
Crockett  v.  Scrilincr,  (39. 

( 'rofoot  v.  Bennett,  l.'X). 
Croly  V.  Pollard,  244. 
Cromnieiin   v.    Railroad   Co.,   313. 
Crompton  v.  Beach,  140. 
Croninger    v.    Crocker,    280,    282, 

294. 
Cronk  v.  Colo,  177. 
Crook  V.  Railroad  Co.,  371. 
Crookshank  v.  P.urrell,  04,  CS. 
V.   Ko.'^e,  224. 

•  'rosby  v.  Canal  Co.,  9. 

V.  Wadsworth,  75. 
I  !<psliy  Hardwood  Co.  V.  Trester, 

!>'J. 
Cross  V.  Hayes,  ISO. 

V.  O'Donnell,  94,  328. 

V.  Peters,  180. 
Crossen  v.  Murphy,  191. 
Crowl  V.  GoodenJM'rger,  283. 
Crowinsliield  v.  Kittridge,  200. 
Croyle  v.  Moses,  170. 
Croze  V.  Laud  Co.,  150. 
Crug  V.  Gorham,  123,  313. 

•  iinnniey  v.  Raudenbush,  314,  315. 

.'il't;. 
Cuddee  v.  Rutter,  3G0. 
Cuff  V.  Penn,  107. 
Culin  V.  (Jlass  Works.  3.50. 
Cullum  V.  Wagstaff.  277. 
Cumming  v.  Brown,  o.'U. 
Cuumiiiigs  v.  .Vrnold,  108. 
V.  (iilinan,    2<>.'). 

<  lunniins  v.  Scott,  103. 

( 'undell  V.  Dawson.  214. 
CuMdy  V.  Lindsay,  28,  44,  190. 
Ciinliffe  V.  Harrison,  1.59,  2S2,  283. 
Cunningham  v.  Aslibrook,  129. 

V.  Brown,  00. 

V.  Williams,  111. 
Cunningham  Iron  Co.  v.  .Mfg.  Co., 
120. 


450 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Currie  v.  Auderson,  87,  88,  90. 
Curtis  V.  Hanuay,  3G9. 
V.  O'Donnell,  85. 
Cusack  V.  Robinson,  83,  85,  86,  90, 

94,  95,  318. 
Gushing  v.  Breed,  7,  151. 
Cutting  V.  Whittemore,  138. 


Dailey  v.  Green,  250,  365,  375. 
Dakota   Stock  &   Grazing   Co.   v. 

Price,  274. 
Dalton  V.  Tliurston,  180. 
Dalzell  T.  Mfg.  Co.,  4,  73. 
Dame  v.  Baldwin,  29. 

V.  Flint,  225. 
Damon  v.  Bryant,  203. 

V.  Osborn,  84. 
Dana  v.  Fiedler,  350,  354. 

V.  Hancock,  108. 
Dane  v.  Kirkwall,  24. 
Danforth  v.  Walker,  349. 
Daniel  v.  Hannah,  60. 
Daniels  y.  Newton,  306,  307. 
D'Aquila  v.  Lambert,  324. 
Darby  v.  Hall,  347. 
Dater  v.  Earl,  211. 
Darvill  v.  Terry,  199. 
Dauphiny  v.  Creamery  Co.,  87. 
Davidson  v.  Carter,  223. 
Davies  v.  McLean.  276. 
Davis  V.  Betz,  189. 

V.  Bronson,  212,  225. 

V.  Caldwell,  18,  19.  20. 

V.  Cement  Co..  157. 

V.  Eastman,  93. 

V.  Furniture  Co.,  350. 

V.  Gilliam,  268. 

V.  McFarlane.  77. 

V.  Robertson,  71. 

V.  Rowell,  71. 

V,  Rnsspll,  273.  319. 

V.  Shields.  106.  111. 

V.  Smith,  244. 

V.  Stewart,  180. 
Davis  Calyx  Brill  Co.  v.  Mallory. 
258,  259. 


Davis  Gasoline  Engine  Works  Co. 

V.  McIIugh,  144. 
Davis  Sulphur  Ore  Co.  v.  Guano 

Co.,  341. 
Dawson  v.  Collis,  368. 

V.  Graham,  178. 
Day  V.  Bassett,  138. 

V.  Cooley,  203. 

V.  Construction  Co.,  258,  374. 

V.  Gravel,  120. 

V.  Jeffords,  305. 

V.  McAllister,   217. 

V.  Pool,  371,  375, 
Dayton  v.  Hooglund,  372,  375. 
Dearborn  v.  Turner,  146. 
Deason  v.  Boyd,  17. 
Decell  V.  Lewenthal,  19. 
Dederick  v.  Wolfe,  141. 
Deep  River  Nat.  Bank,  lu  re,  IIL 
Deering  v.  Chapman,  224. 

V.  Cobb.  47. 
Delamater  v.  Chappell,  144,  298. 
De  La  Vergne  Refrigerating  Mach. 

Co.  V.  Railroad  Co.,  305. 
Delavina  v.  Hill.  211. 
Dellone  v.  Hull.  188.  345. 
Delta  Bag  Co.  v.  Kearns,  333. 
Deming  v.  Foster,  2G6. 
Dempsey  v.   Gardner,  205,  207. 
Den  Blej'ker  v.  Gaston,  356. 
Denny  v.  Eddy,  138. 
Densmore     Commission     Co.     v. 

Shong,  201. 
Derbyshire's  Estate,  162. 
Derry  v.  Peek,  183. 
Devaux  V.  Conolly.  363. 
Devine  v.  Edwards.  127,  156,  292. 

V.  Warner.  86.  92,  95,  109. 
Devlin  v.  New  York,  359. 
Devoe  v.   Brandt,   194. 
Dpwes    Brewery    Co.    v.    Merritt, 

136. 
Dewey  v.  Erie  Borough,'145. 
1  >!'  Witt  V.  Berry.  266. 
Dexter  v.  Curtis,  47. 

V.  Hall.  22. 

V.  Norton.  309. 
Deyo  V.  Hammond,  233. 


rAsi:s 

(The  flgures 

Df'.vslier  v.  Friclx'l,  ."iT. 
IMdioy  V.   Wiildn,  48. 
Dlrkiuson  v.  iKxhls,  T)!. 

V.  Guy,  254,  2C.r.. 
IUckson  V.  Zlziiila.  200. 
Dleiu  V.  K«)l>lit/.,  :WS,  32r).  338.  .'?40. 
DiiTson  V.  rt'tiTsnu'viT.  4S,  7U.  i<l. 

92. 
Diotz  V.  Sutcliffc,  188. 
Dignnn  v.  Sinirr.  .'{(X). 
Dike  V.  HoitliimiT,  2:{G. 
Dilk  V.   Kfi^'liloy,   11). 
Dill  V.  .Muiiif(.r<l,  341. 

V.  OTorrall,    191. 
Dlllman  v.  Nadh'tinlTer,  177. 
Din^lle  v.  Hare,  377. 
l>liij;!oy  V.  Oler,  'MM;. 
Dlniile  V.  Johnson,  91. 
Dlvorsy  v.  K(>llo{,%',  ].'')0. 
Divine  v.  MeConnifk.  2G2. 
Dixon  V.  Bald  wen,  332. 

V.  Fl.'tclier.  281. 

V.  Yates,    122,    317,    320.    321. 
32G. 
D.  ]\f.  Osborne  &  Co,  v.   Francis. 

234. 
Doane  v.  Dunham,  29'),  2it!»,  .30.".. 
Dr.  A.  r.  Sawyer  Medicine  Co.  v. 

Johnson,  291. 
Dodd  V.  Farlow.  2r>4. 
Dodge  V.  Mfg.  Co.,  2:57. 
l>odsley  v.  Varley.  .314. 
Doerr  v.  WooL^^cy,  .'"iti. 
Doherty  v.  Hill,  lOG. 
Dole  V.  Olni.stead.   151. 

V.  Stinipson.  88. 
DollifT  V.  Rolibin.'^,  .3.'>,  .30. 
Donaldson  v.  Farwoll,  179,  194. 
Donald  v.  Suckling,  9. 
Doreinus  v.  Howard,  34.'>. 
Donnan  v.  Weakley,  180. 
Dorr  V.   Fisher.   2.30. 
Dorsey  v.  I'ike.  97. 
Doughty  V.   Hrass  Co.,  111. 
Douglas  V.  r?ank,  34. 
V.  Moses,  378. 
T.  Shumway,  314. 


(ITKD.  4rit 

rofer  to  pages. 1 

Douglass   Axe   .Mfg.   <  n.    v.   «;ard- 

ner,  371, 
Dounce  V.  Dow,  2."iS.  2.":i. 
Dow  V.  Sanhorn.  17'.t. 
V.  Worthen,   1(»0. 
Dowagiac  .Mfg.  Co.  v.  .Mahon.  110. 

20."..  200. 
Dowling  V.  Lawrence.  17.".. 

V.  .MeKeiuiey,  12,  07,  71. 
Downer  v.  Thompson,    l."".!!,  282. 
Downing  v.  Dearl.orn,  llo. 
Downs  V.  Marsh,  88. 

V.  Koss,  0,s. 
Dows  V.  Bank,  lor.,  171. 
V.   fJlaspel.  218. 
V.   Kidder.  125. 
V.  I'errin,  35, 
Drake,  Ex  parte,  .^S. 
V.   Howell.  75. 
V,   Wcll.s.  74. 
Drew  T.  Nunn,  22. 
Drews  v.  I.K)gging  Co.,  142,  242. 
Drexel  v.  Pease,  107.  172. 
Droege  v.  Mfg.  Co.,  189. 
I  >rude  V.  Curtis,  15. 
1  )rudge  V.  Leiter,  7. 
Drununoud    v.     Van     lii_'cn,    200, 

20,5,  207. 
Drury  v.  Defontaine,  215.  21G. 

V.  Young,  102,  111,  112. 
Ducker,  In  re.  134,  137. 
Dudley  v.  Danforth,  19:>. 
Duke  V.  Shackleford.  141. 
Dulnney  v.  U(.gcrs,  183. 
Duncuff  V.  Alhrecht,  72. 
Dunkirk  Colliery  Co.  v.  Lever,  349. 
Dunham  v.  Ilarlman,  114. 
I  •uiiliiii  V.    r.crry,    149. 
Dunlop  V.  Grote,  345. 

V.   Lambert,  150,  291.  292 
I  >umie  V.  Ft'rgu.son,  77.  7s. 
Dujilex   Safety  Boiler  Co.  v.  Gar- 

«len.  235. 
1  huant  V.  Rhener.  215. 
Durfee  v.  Abbott,  17. 

V.   Jones,    5M. 
Durgln  V.  Dyer,  213. 


452 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Durgy    Cement   &   Umber   Co.   v. 

O'Brien,  325,  326. 
Durrell  v.  Evans,  111,  113. 
Dnshane  v.  Benedict,  258. 
Dustan  v.  McAndrew,  340,  347. 
Dwight  Bros.  Paper  Co.  v.  Paper 

Co.,  266. 
Dwight  V.  Eckert,  276. 
Dwinel  V.  Howard,  289. 
Dyer  v.  Homer,  198,  203. 
V.  Pearson,  32. 
V.  Railroad  Co.,  156. 
Dyliers  v.  Townsend,  103. 


Eagan  Co.  t.  Johnson,  372. 
Eagle  Iron  Works  v.  Railroad  Co., 

369,  377. 
E.  A.  Moore  Furniture  Co.  v.  W.  J. 

Sloane,  377. 
Earle  v.  Reed,  21. 

V.  Robinson,  140. 
Earl  of  Bristol  v.  Wilsmore,  193. 
Easter  v.  Allen,  194. 
Eastern  Forge  Co.  v.  Corbin,  290. 
Eastern  Granite  Co.  v.  Helm,  305. 
Easton  v.  Montgomery,  111. 

V.  Worthington,  29. 
Baton  V.  Cook,  303,  324. 

V.  Davidson,  194. 

V.  Eaton,  23. 

V.  Kegan,  215. 
Echols  V.  Railroad  Co.,  277. 
Eckenrode  v.  Chemical  Co.,  306. 
Edan  v.  Dudfield,  88,  97. 
Eddy  V.  Clement,  309. 
Edelhoff  V.  Mfg.  Co.,  180,  181. 
Eden  v.   Parkison,  242. 
Edgar   v.    .Joseph   Breck   &    Sons 

Corp.,   2S0,   379. 
Edgerton  v.  Hodge,  99. 

V.  Michels,  244. 
Edmunds   v.   Transportation    Co., 

52,  196. 
Edson  V.  Hudson,  195. 
Edwards  v.  Brewer.  325. 

V.  Davenport,   23. 


Edwards  v.  Elliott,  162. 

V.  Harbeu,  200. 

V.  Marcy,  240. 

V.  Pearson,  243. 

V.  Railroad  Co.,  64,  69,  88. 
E.  E.  Forbes  Piano  Co.  v.  Wilson, 

140. 
Egerton  v.  Mathews,  104. 
Eggleston  v.  Wagner.  51. 
E.  H.  Pray,  The,  338. 
Eichelberger  v.  McCauIey,  69. 
Eichholz   V.    Bannister,   243,   244, 

245. 
Elberton  Hardware  Co.  v.  Hawes, 

60. 
Elbinger    Actien-Gesellscgaft    fur 
Fabrication  von  Eisenbahn  Ma- 
terial V.  Armstrong,  360. 
Eldridge  v.  Benson,  11. 
Election,  The,  247. 
Electric  Lighting  Co.  v.  Elder,  235. 
Elgee  Cotton  Cases,  120,  126,  128. 
Elgin  Jewelry  Co.  v.  Dozier,  238. 
Ellen  V.  Topp,  372. 
Ellershaw  v.  Magniac,  165,  166. 
Ellinger  v.  Comstock,  278. 
Elliot  V.  Ince,  22,  23. 
Elliott  V.  Edwards,  162. 

V.  Howison,  157. 

V.  Thomas,  85. 
Ellis  V.  Hammond,  221. 

V.  Hunt.  272,   330. 

V.  Railroad  Co.,  69. 

V.  Roche,   156. 

V.  Thompson,  277. 
Ellison  V.  Brigham,  70. 
Elmore  v.  Kingscote,  105. 

V.  Stone,  95. 
Elphick  V.  Barnes,  142,  144. 
Ely  V.  Ormsby.  96. 
Emanuel  v.  Dane,  12. 
Emerson  v.    Brigham,   262. 

V.  Railroad  Co.,  46. 

V.  Spring  Co.,  184. 
Emery  v.  Bank,  169. 
Emma  Silver  Min.  Co.  v.  Mining 
Co.,  188,  189. 


CASES    CITED. 
[The  figures  refer  to  pages.] 

Hmnierson  v.  rieolls.  81,  114. 
Emmerton  v.  Mathews,  2(>1. 
Emiuett  V.  Thorn.  30. 
Empire  State  Type  Founding  Co. 

V.   Grant.    124.   12.1. 
Euger  V.  Dawley,  '2'M 
Englebert  v.  Troxell,  15,  19. 
Englehardt  v.  Clauton,  257. 
English   V.    Cdmnilsslon   Co.,   242. 

2C.0,  2C1,  371,  372,  378. 
Enlow  V.  Klein.  8. 
Ensley  Lumber  Co.  v.  Lewis,  130. 
I'ippens.  Smith  &  Wlemann  Co.  v. 

Littlejohn,  277. 
Epperson  v.  Nugent,  18. 
Epstein,  In  re,  184. 
Equitable  Gaslight  Co.  v.  Mfg.  Co., 

3G0. 
Ernst  V.  Cohn,  184. 
Erskine  v.  Swansea,  239,  240. 
Erwln  V.  Clarli,  7. 
V.  Harris.  IGo. 
Bslirldge  v.  Glover,  51. 
Esson  V.  Tarbell,  3G5. 
Eureka  Co.  v.  Edwards,  15. 
Evans  v.  Davies.  72. 
V.  Iloare,  112. 
V.  Montgomery,  189,  197. 
V.  Roberts,  77,  78. 
Evansville  &  T.  H.  R.  Co.  v.  Er- 

win,  124. 
Everett  v.   Hall.    138. 
Everson  v.   Granite  Co.,  54. 
E.  W.  Bliss  Co.  V.  Can  Co.,  357. 

359. 
Excelsior  Coal   Min.   Co.   v.   Coal 

Co.,  56. 
Exhaust   Ventilator   Co.   v.    Rail- 
road Co.,  234,   300. 
Eyers   v.   Haddem,   240,  369. 


453 


Faber  v.  Hougbtham.  290. 
Falrbank  Canning  Co.  v.  Metzgar. 

239,  262,  368.  371. 
Fairbanks  v.  Drug  Co..  13. 
V.  Eureka  Co.,  136. 


Falrcbild  v.  McMmIkju,  178. 
l-'alrlleid  Bridgr  f...   v.   Nye,  205. 
l''alcke  v.  Gray,  'U'*f. 
Falk.  Ex  parte.  .3.36,  3.17. 
I'^alke  V.   Fletcher,    1<;5. 
Falls   V.    Gaither.   51. 
I'arrant  v.  Tlionipson.  30. 
I'arrar  v.  Smith,  2()7. 
Farcbrother  v.  Simmons,  113,  114. 
Fargo  Gas  A  Coke  Co.  v.  Eie<'trlc 

Co.,  187. 
Farina  v.  Home,  88,  96,  273,  319. 
I'arlow   V.    Ellis.    132. 
Farmeloe  v.  Rain.  320. 
Farmer   v.    Etheridge.   36. 

v.  Gray.  S4. 

V.  Robinson,  113. 
Farmers'  &  Me<'liaiiics'  Nat.  Bank 

V.   Logan,   165.   161),   171. 
Farmers'   Phosphate   Co.   v.   Gill, 

129. 
I'anpiarson  v.  King.  31. 
Farraut  v.  Thomjison,  30. 
Farrar  v.  Smith,  207. 
Farrell  v.  R.  Co.,  329. 
Farror  v.  Nigbtingal,  46. 
Farris  v.  Ware.  102. 
Farwell  v.  Ilanchett,  179,  191. 

V.  Kloman.    195. 

V.  !>•  wilier.  105. 

V.   Myers.  190. 

V.  Solomon.   307. 
Faulkner  v.  Hebard,  51. 

V.  Klamp,  192. 
Fay  V.  I'.unlitt.  23. 

V.  Wheeler.  71. 
I'echheinier  v.  Banm,  184. 
Feise  V.  Wray.  .T24.  325. 
Felix  V.  Brandstetter  Co.,  330. 
Felthouse  v.  Bindley.  51. 
Fenelon  v.  Hogobonm.  123,  124. 
Fennell  v.  Ridlor,  216. 
Ferchelmer  v.  Stewart,  165. 
Ferguson  v.  Bank.  149. 

V.  Carrlngton,  179,  18S. 
v.  Hosier,  371,  377. 
V.  Spear,  199. 


454 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Ferguson  v.  Trovaten,  112. 
Fessenden  v.  Mussey,  111. 
Fessler  v.  Love,  354.  3.j5,  358. 
Fielder  v.  Starkin,  371. 
Field  V.  I^lean,  314. 

V.  Runk,  84. 
Fifth   Nat.   Bank   of   Chicago   v. 

Bayley,  171. 
Filkins  v.  Whyland,  237. 
Fllley  V.  Pope,  250,  292,  367. 
Filson  V.  Himes,  223. 
Finch  V.  Barclay,  214. 

V.  Gregg,  172. 

V.  Mansfield,  155,  211. 
Fine  v.  Homsby,  73. 
Finley  v.  Quirk,  221. 
Finn  v.  Clark,  293. 
Finney  v.  Apgar,  64,  69. 
First  Nat.  Bank  v.  Bates,  273. 

V.  Boyce,  35. 

V.  Crocker,  171. 

V.  Ege,  34,  172, 

V.  Railroad  Co.,' 33. 

V.  Reno,  12. 

V.  Schmidt,  334,  335 

T.  Schween,  10. 

y.  Shaw,  41,  42,  43. 

V.  Tootle,  189. 
Firestone  v.  Werner,  176. 
Fishback  v.  Van  Dusen,  124,  125, 

132. 
Fish  V.  Cleland,  181. 

V.  Kempton,  304. 
Fisher  v.  Andrews,  106,  107. 

V.  Boyntou,  277. 

V.  Kuhn,  109. 

V.  Lord,  225. 

V.  Mellen,  382. 

V.  Seltzer,  51. 
Fitch  V.  Archibald,  260. 
Fitchard  v.  Doheny,  181. 
Fitt  V.  Cassanet,  339. 
Fitzgerald  v.  Evans,  241. 
Fitzmaurice  v.  Puterbaugh,  257. 
Flach  V.  Gottschalk  Co.,  23. 
Flagg  V.  Gilpin,  218. 
Flanders  v.  Putney,  57. 


Fleck  V.  Warner,  141. 
Fleet  V.  Hertz,  10. 
Fleming  v.  Ilanley.  189. 
Fletcher  v.  Bartlett.  176. 

V,  Livingston.  74. 

V.  Packing  Co.,  50. 
Flinn  v.  St.  John,  216. 
Flint  V.  Lyon,  2.50. 

V.  Valpey,  22. 
Florence  Min.  Co.  v.  Browu,  308. 
Floyd  V.  Browne,  58. 
Fluharty  v.  Mills,  75. 
Flynn  v.  Columbus  Club,  217. 

V.  Dougherty,  69,  70. 
Foard  v.  :McComb,  183. 
Foerster  v.  Gallinger,  180. 
Fogg's  Adm'r  v.  Rodgers,  251. 
Foley  V.  Felrath,  142. 
Follett  Wool  Co.  V.  Deposit  Co., 

97. 
Fontaine  v.  Bush,  89. 
Foos  v.  Sabin,  350. 
Foot  V.  Marsh,  1.50. 
Forbes  v.  INIarsh,  135. 

V.  Railroad  Co.,  33,  168,  171. 
Fordice  v.  Gibson,  161. 
Ford  V.  Phillips,  17. 
Foreman  v.  Ahl,  217.  220. 
Fores  v.  Johnes,  209. 
Forster  v.  Taylor,  214. 
Forsyth  v.  .Tervis,  12. 

V.  Mann,  70. 
Forsyth  Mfg.  Co.  v.  Castlen.  .50. 
Fortesque  v.  Crawford,  106. 
Ft.  Payne  Coal  &  Iron  Co.  v.  Web- 
ster, 307. 
Forty  Sacks  of  Wool,  171. 
Foss-Schneider    Brewing    Co.     v. 

Bullock,  299. 
Foster  v.  Adams,  345. 

v.  Mabe,  76. 

v.  Magill,  129. 

V.  Mining  Co.,  59,  61. 

V.  Ropes,  126. 

V.  Thurston,  220. 
Foster's  Case,  47. 
Foulk  V.  Eckert,  189. 


CASES   CITKD. 
[The  figures  refer  to  pagM.] 

Fowler  v.  Md'ap^riut.  ."31*9. 
Fox  V.  Harding,  I'.M. 

V.  Mackretli,   175. 

V.  Webster,  179. 
Frame  v.  Liquor  Co..  ^l. 
France  v.  Gaudet.  ;{i">4. 
Frauguo  v.  Lon«,  l.'jo. 
Frank  v.  Unpy.   1."t. 

V.  Miller.*  lUT.  109. 
Franklin  v.  Long,  45. 

V.  Neate,  9. 
Franklin    Su^'ar    Uolininp   Co.    v. 

Collier,  181. 
Fraxipr  v.  Sinunons,  34.". 
Frederick  Mtu'.  Co.  v.  Devlin.  258. 
Freed  Furniture  &  Carpet  Co.  v. 

Soreusen,  U4,  136. 
Freeland  v.  Rltz.  109. 
Freelove  v.  Freelovc.  .^65. 
Freeman  v.  Cooke,  30. 

V.  Kraenier.    1.57.    !(>!>. 
Freeport  Stone  Co.  v.  Carey,  132. 
Freeth  v.  Burr,  288. 
Freiberg  v.  Steenbock,  270. 
French  v.  Schoonmaker,  7.">. 
French  &  American  Importing  Co. 

V.  Drug  Co..  18G. 
Frenzel  v.  Miller,  183. 
Freyman  v.  Knecht,  308,  377. 
Friend  liros.  Clothing  Co.  v.  Hurl- 

burt,  191.  193. 
Frisbee  v.  Chickerlng.  179.  184. 
Frobreich  v.   Ganimon,  377,  379. 
Frolich  v.  Glass  Co..  .355. 
Frost  V.  Rlancbard,  237. 

V.  Dairy   Co..   259. 


465 


Funke  v.  Allen,  348,  349. 
Furlong  v.    I'olleys,  350,  .358. 
Furiuuu  V.  Railroad  Co.,  33. 
Furry  v.  O'C^mnctr,  184. 
F.    \V.    Knvanuugh    Mfg.    Co. 
Rosen,  350. 


G 

Co. 


V.   Fleshman, 


V.  Hill.  114. 

V.  Knipbt.  .'JOO. 

V.  Woodruff.  128. 
Frostburg  Min.  Co.  v. 

89. 
Frye  v.  Burdick.  8. 
Fuentes  v.  Montis.  40. 
Fuller  V.  Rean,  00. 

V.  Duron,  12. 

V.  Eanios.  140. 
Fulton  V.  Gillian.  180. 


Glass  Co. 


Bam- 


Co.   V. 


Estnt** 


(Jaar,   Scott   & 

347. 
(Jabarron  v.  Kreeft.  148,  103,  168. 
(Jadsden  v.  Lance.  73. 
Gaff  V.  Ilonieyer.  S.S.  299. 
(Jage  V.  Carpenter.  253,  257,  200. 

V.  Chesebro,   Ht'.t. 
(Jainesville    Nat.    Bank    v. 

berper,  184. 
Galbraitb  v.  Holmes,  99. 
Gale  V.  I'.uriiell,  40. 
Gale    Sulky-Harrow    Mfg. 

Stark.  309. 
Galvin  v.  Racon.  28. 

V.  MacKenzie.  89. 
Garabs     v.     Sutherland's 

211. 
Ganson  v.  Madlgan,  282,  343,  345, 

.349. 
(Jnrberino  v.  Roberts,  307. 
Garbutt  v.  Watson.  04.  65,  66,  67. 
Gardet  v.  Relknap.  94. 
Gardiner  v.  (Jray.  2f>,3. 
(iardner  v.  Gnmt.  S4. 

V.  .Toy,  07. 

V.  Lane.  .")9,  159. 

V.  MiEwen,  40. 

V.  T.  J.  Winter  &  Co..  2.57. 

Garfield  v.  Paris.  84.  87.  S8,  91,  92. 

Garfield  &  Proctor  Coal  Co.  v.  K. 

Co.,  300. 
(Jarland  v.  Keeler,  234. 
Garretson  v.  Selby.  150.  293. 
Garrison  v.  Electrical  Works,  18<i. 
Garth  v.  Davis,  114. 
Garvin  Mach.  Co.  v.  Hutchinson, 

13. 
Gary  v.  Jacohson.  203. 
Gassett  v.  Glazier.  177. 


456 


CASES   CITED. 
[The  figures  refer  to  pages.l 


Gates  V.  Bliss,  190. 

V.  Raymond,  192. 
Gatiss  V.  Cyr,  89. 
Gatling  v.  Newell,  187.  192. 
Gault  V.  Brown,  81,  84. 
Gavin  v.  Armistead,  ISO. 
Gay  V.  Dare,  145. 

V.  D.  M.  Osborne  &  Co.,  192. 
Gaylord  v.  Soragen,  211,  225. 
Gaylord   Mfg.   Co.   v.  Allen,   299, 

374. 
Gentilli  v.  Starace,  299,  375. 
George  v.  Matonni,  201. 
George    D.    Mashburn    &    Co.    v. 

Dannenberg  Co.,  184,  185. 
George  D.  Sison  Lumber  &  Shin- 
gle Co.  V.  Haak,  298. 
George  H.  Hess  Co.  v.  Dawson, 

290. 
George   M.   Hill   Co.,   In  re,   144, 

235. 
George  W.  Merrill  Furniture  Co. 

V.  Hill,  132. 
Gerli  v.  Mfg.  Co.,  289. 
Gemdt  v.  Conradt,  97. 
Gerrish  v.  Clark,  135. 
Gerst  V.  Jones,  257. 
Gibbes,  Ex  parte,  332. 
Gibbons  v.  Bente,  351. 
Gibbony  v.  R.  W.  Wayne  Co.,  284. 
Gibbs  V.  Benjamin,  128. 

V.  Merrill,  14. 
Gibson  v.  Carruthers,  323,  327. 

V.  Cranage,  234. 

V.  Holland,  102. 

V.  Pelkie,  45. 

V.  Soper,  22,  23. 

V.  Stevens,  273. 
Gilbert  v.  Register  Co..  1.34. 
Giles  V.  Edwards,  361,  ?,m. 
Gill  V.  Benjamin,  130,  154. 

V.  Blcknell,  114. 

V.  De  Armant,  136. 

V.  Frank,  207,  273. 

V.  Hewett,  114. 

V.  McDowell,  56. 
Gillespie  v.  Cheney,  256,  258. 


Gillett  V.  Hill,  148. 

Gillis  V.  Goodwin,  15,  16. 

Gilman  v.  Hill,  69.  81. 

Gilman  Linseed  Oil  Co.  v.  Norton, 

32. 
Gilmore  v.  Newton,  28. 
Gilmour  v.  Supple,  122. 
Gindre  v.  Kean,  11. 
Gipps  Brewing  Co.  v.  De  France, 

225. 
Girard  v.  Taggart,  350. 
Giroux  V.  Stedman,  262. 
Gittings  V.  Nelson.  46. 
Glass  V.  Blazer,  365. 
Glasscock  v.  Hazell,  144. 
Gleason  v.  Beers,  6. 
Glisson  V.  Geggie,  142. 
Globe  Refining  Co.  v.  Oil  Co.,  359. 
Gloucester  Isinglass  &  Glue  Co.  v. 

Cement  Co.,  363. 
Glover  v.  Ott,  20. 
Glyn  v.  Dock  Co.,  336,  338. 
Glynn  Mills  &  Co.  v.  West  India 

Docks,  34. 
Goddard  v.  Binney,  67,  123,  275. 
Godts  V.  Rose,  153,  163. 
Godwin  v.  Francis,  115. 
Colder  v.  Ogden,  149. 
Golding,  Ex  parte,  336. 
Goldsmith  v.  Stern,  18.5. 
Gompertz  v.  Bartlett,  362. 

V.  Denton,  368. 
Gooch  V.  Holmes,  72. 
Goodall  V.  Skeltou,  317. 
Goodell  V.  Fairbrother,  136. 
Goodman  v.  Alexander,  20. 

V.  Griffiths,  105. 
Goodrich  v.  Van  Nortwick,  234. 
Goodwin  v.  Goodwin,  201. 

V.  Railroad  Co.,  123,  124. 

V.  Trust  Co.,  41,  183,  195. 
Goom  v.  Affalo,  117. 
Gordon  v.  Butler,  177. 

V.  Norris,  161,  348,  349,  350. 

V.  Ritenour,  203. 
Gore  V.  Gibson,  24. 
Gorham  v.  Fisher,  91. 


CASES  (  rn:i). 

(The  flgures  refer  to  pages.] 


Goruian  v.  Brossard,  71,  80,  88.  9G. 

07,  100. 
Gosbc'll  V.  Archer,  115. 
Gos8  V.   Dysant,  240. 

V.  Lord  Niipent,  108. 
Gossler  v.  Seliept-'ler,  3'J4,  327. 
Goss   Printing   I'ress   Co.   v.   Jor- 
dan, 8,  137. 
Gould  V.  BoiirReois,  244,  24r>. 

V.  INIurcli,  309. 

V.  Stein,  -JM. 
Goulds  V.  Brophy,  258. 
Gowen  v.  Klous.  103,  104. 
Grabfelder  v.  Vosburg,  144,  145. 
Grace  v.  Hale,  20. 
Gradle  v.  Warner,  105. 
GraCf  V.  D.  M.  Osborne  Co.,  159. 
373. 

V.  Fitch,  77. 

V.  Foster.  204. 
Grafton  v.  Arniitage.  60. 

V.  Cuinmings,  103,  109. 
Graham  v.  Frotwell,  113. 

V.  iMn.sson,  113. 
Grand  Tower  Co.  v.  Phillips,  35a 
Grant  v.  Banl<,  277. 

V.  Cole,  .^7, 

V.  Fletcher,  117. 

V.  Johnson,  228. 

V,  McGratli.    217. 
Grantham  v.   Hawloy,  47. 
Graves  v.  nepl<e,  127. 

V.  Johnson.  211,  212,  225. 

V.  Legg.  228. 

V.  Weld,  78. 
Gray  v.  Booth.  139. 

V.  Davis,  87. 

V.  Ice-.Mach.    Co.,    209. 

V.  Walton,  270. 
Grayson    County    Nat.    Bank    v. 

Railway,  171. 
Greaves  v.  Ashlin,  .301. 
Grebert-Borgnis  v.  Nugent,  360. 
Green  v.  Armstrong,  75. 

V.  Brookins,  73. 

V.  Collins,  211. 

V.  Green,   15. 


(Jreen  v.   Hall,   162. 

V.  Intn  Co.,  80. 

V.  LcwLs.  118. 

T.  .MiTriani,   94,   9.". 

V.  Itailroad  Co.,  74. 

V.  Kowland.  2o4. 

V,  Stuart.  302. 

V.  Tanner,  203. 

V.  Water  Co.,  202. 
(Ireenbaum  v.  Megibben,  35,  36. 
Greene  v.  Bateman,  54. 

V.  Godfrey.    221. 

V.  Lewis,  W. 

v.  Soci6t6  Anonynie,  170. 
Greenleaf  v.   Gallaglier,   340. 

V.  Gerald,  isl. 

V.  Hamilton.  340. 
Greenwood  v.  Curtis,  225. 

V.  Law,  72. 
Greenwood  Grocery  Co.  v.  Eleva- 
tor Co.,  109. 
Greer  v.  Bank,  59. 

V.  Church,  137. 
Gregg  V.  Belting  Co.,  2.')S. 

V.  Well.s,   3<J. 
Gregory  v.  Lee,  21. 

V.  Morris,  314,  317. 

V.  Paul,  25. 

V.  Schoenell,   182,  186. 

V.  Wendell,  218.  219. 
Gregson  v.  Ruck.  117. 
Grove  V.  Dunham.  327,  330. 
Grey  v.  Cary,  94. 
Gril)ben  v.  Maxwell.  2.3. 
Grice  v.  Richardson,  317. 
Grieb  v.  Cole,  242. 
GrifFin  v.  Colver,  58. 

V.  O'Neil,  54. 
Griffith  V.  Fowler,  30. 

V.  Strand.  187. 

V.  Wells.  214.  215. 
Griffiths  V.  Owen.  !i;i. 

V.  Perry,   314.   315.    317.   322. 
Grigsby  v.  Stapleton.   175. 
Grlmoldby  v.  Wells.  299. 
Grlzewood  v.  Blaiie.  218. 
GrofT  V.  Belche,  120. 


458 


CASES  CITED. 
[The  figures  refer  to  pages. 1 


Grose  v.  Hennessey,  245,  246. 
Gross  V.  Gross,  203. 

V.  Heckert,   70. 

V.  Kierski,  244.   247. 
Grotenkemper  v.  Achtermeyer,  51. 
Grout  V.  Hill,  331. 
Grover  v.  Grover,  12. 
Groves  v.  Buck,  63,  65. 
Grymes  v.  Sanders,  1S9,  191,  197. 
Guckenheimer  v.  Angevine,  192. 
Guilford    v.    McKinley,    141. 

V.  Smith,  332. 
Guinzburg  v.   H.  W.  Downs  Co., 

29. 
Gunby  v.  Sluter,  186. 
Gunderson  v.  Richardson.  221. 
Gurni  V.  Bolckow,  315,  320. 
Gunter  v,  Lechey,  13. 
Gunther  v.  Atwell,  204, 
Gurney  v.  Behrend,  35. 

V.  Railroad  Co.,  374. 

V.  Womersley,  362. 
Guthrie  v.  Morris,  21. 

V.  Murphy,  19. 
Gwathney  v.  Cason,  114. 
Gwinn  v.  Simes,  217. 
Gwyn  V.  Railroad  Co.,  324. 

H 

Haacke  v.  Literary  Club,  222. 
Haak  v.  Linderman,  137. 
Haas  V.  Bank,  172. 
Haase  v.  Mitchell,  191. 

V.  Nonnemacher.  250,  373. 
Habeler  v.  Rogers,  347. 
Hackley  v.  Cooksey,  59. 
Hadcock  v.  Osmer,  183. 
Hadden  v.  Dooley,  201. 
Hadley  v.  Baxendale,  357. 
Hadley  Dean  Plate  Glass  Co.  v. 

Glass  Co.,  351. 
Hagee  v.  Crossnian,  186. 
Hagey   v.    Schroeder.  8. 
Hagins  v.  Combs.  60,  127. 
Hague  V.  Porter,  159. 
Hahlo  V.  Grabt,  185. 


Ilahu  V.  Fredericks,  148. 
Haines  v.  Tucker,  307. 
Halby  v.  Matthews,  41. 
Haldeman  v.  Duncan.  140. 
Hale  V.  Philbrick,  182,  187. 

V.  Rawson,  50,  236. 
Haley  v.  Manning,  186. 
Hall  V.  Aitkin,  246. 

V.  Butterfield,  16,  17. 

V.  Corcoran,   221. 

V.  Dimond,  332,  333. 

V.  Fullerton,  197. 

V.  Glass,  48. 

V.  Green,   162. 

V.  Hinks,  194. 

V.  Keller,  173, 

V.  Pillsbury,  8. 
Hallacher  v.  Heulein,  180. 
Hallas  V.  Robinson,  49. 
Hallenbeck   v.   Cochran,   96. 
Hallen  v,  Runder,  79. 
Hallett  V.   Novoin,   213. 

V.  Oakes.  24. 
Halley  v,  Troester,  22, 
Hallgarten  v,   Oldham,   205,   207, 

270,  273, 
Halliday  v.  Holgate,  9, 
Halsell  V.  Musgi-ave,  182. 
Halsey  v.  Warden,  171. 
Halstead  v.  Jessup,  77. 
Halterline  v.  Rice,  127. 
Hamburger  v.  Rodman,  317,  321. 
Ilamet  v.  Letcher,  .53,  196. 
Hamilton  v.    Bank,   49. 

V.  Brewing  Co.,  166. 

V.  Calhoun,    275. 

V.  lanyard,  367. 

V.  Park  &  McKay  Co.,  45. 

V.  Rogers,  46. 

V,  Russel,  198. 
Hamilton-Brown  Shoe  Co.  v.  Mil- 
liken,  184. 
Hamlin  v.  Abell,  183. 
Hammer  v.  Schoenf elder,  359, 
Ilanmiond  v.  Anderson,  127. 

V,  Buckmaster,  191. 

T.  Bussey,  378, 


CASKS    (ITKn, 
[Thtf  flguroB  refer  to  pageB-l 


4511 


Hiiniiiiond    v.    Pt'iuiofk,    liSJ,    18^5, 

IIH),   I'Jl.  n'.»l.'. 
Han.nior  v.  Doaiif,  212. 
Hands  v.  Burton,  12. 

V.  Slunpy,  18. 
lluudy  V.  rublislihi;;  Co.,  22.1. 
iraney-Caniplicll  ("o.  v.  .Vss'n,  2;;."i. 
Hanks  v.  Pallinj;,  .'>(). 
Hanna  v.   Mills.   'Mr,. 
Ilannan  v.  Kayburu,  180. 
Hansen  v.  Cold  Storage  Co.,  170, 
177. 

V.  Gaar,  Scott  &  Co.,  241.  242. 

V.  Stoani-IIpatinK  Co..  280. 
Hanson  v.  Arniita;,'^,  8'J,  91. 

V.  Bussp,   204. 

V.  K<l;.'frly.   175. 

V.  nartsc.  202. 

V.  Marsh,   105. 

V.  Meyer,  128. 
Hapgood  V.  Bosenstock.  360. 

V.  Sliaw,  200.  27.''). 
IFardoll  v.  McClnro.  00. 
Ifardon  v.  Lanp,  ;'.•>.''.. 
Harding  Papi-r  Co.  v.  Alien,  332. 
Hardman  v.  Booth.  44,  52,  190. 
Hardt  v.  Eler-trie  Co..  204,  .300. 
Hardy  v.  Potter.  200. 
HarpoiLs  v.  Stone.  2.">3. 
Hargrove  v.  Adcock,  113. 
Harkno.^^.s  v.  Russell.  134.  130. 
Harlow  v.  La  Brum.  178. 

V.  Putnam,  .302. 
Harman  v.  Reeve.  04.  SO. 
Harmony  v.  Bingham.  300. 
Harnor  v.  Groves,  208.  ,".03,  304. 
Harper  v.  Crain.  217. 

V.  Godsell.  0. 

V.  Terry.  101. 
Harran  v.  Foley.  54. 
Harrigan  v.  Thresher  Co.,  230. 
Harrington  v.  King.  133. 

V.  Strntton.  189. 
Harris  v.  Coe,  11. 

V.  Fowle.   12. 

V.  Pratt.  :{.".l. 

V.  Runnels,  213. 

V.  Smith.  125. 


Harris  v.  Sumner,  200. 

V.  Walte,  2.'t7. 
Harrison  v.  Colttm,  217,  222. 

V.  Fane.  IS. 

V.  Fortlage.   230,   292. 

V.  Luke.   12. 

V.  MfCormick.  2<;:5. 

V.  Otley,  2:5. 
Hart  V.  <'ari>entt'r.  8. 

V.  Mills.  .->7.  281. 

V.  Prater,    18. 

V.  Sattley,  SO. 
Harvey  v.  Dale,  .'502. 

V.  Graham,  108. 

V.  Harris,  .5.3. 

V.  Merrill,  218.  210. 

V.  Stevens,   10,3,  114. 

r.  Varney,  203. 
Haskell  v.  Greely,  200. 

V.  Hunter,  351. 

V.  Rice,  31.'>,  320.  321. 
Ilaskins  v.  Warren.  12.3.  124,  317. 
Haslack  v.  Mayers,  285. 
Ha.ssell  Iron  Works  v.  Cohen,  349. 
Hastie  v.  Coiiturier,  45. 
Hastings  v.  I>overing,  250. 

V.  Pe.irson,  43. 
Hatch  V.  Bayley.  10,5. 

V.  Douglas,  218. 

V,  McBrien.  11. 
Hatch  V.  Oil  Co..  120.  1.53.  275. 
Hatfield  v.  Phillips,  .30. 
Hatstat  V.  Blakeslee.  201,  205. 
Hauk  V.  Brownell,  177.  • 

Havens  v.  Fuel  Co.,  157. 
Hawes  v.  Forster,  110.  117. 
Hawle.v  v.  Keeler,  307. 
Hawkins  v.  Chase,  lOi.  112. 

V.  Davis,  104. 

v.  Graham.  2.34.  235. 

V.  Hersoy,  141. 

V.  Pemberton.    230.    2.50.    251. 
250.  300. 
Hax:ill  V.  Willis.  12.«?.  120. 
Ha.vden  v.  Demets.  121.  .313,  345. 
Hayes  v.  .Tackson.  104. 

V.  Nashville.  341. 
Haynes  v.  Qua.v,  101. 


460 


CASES   CITED. 
[The  figures  refer  to  pages.l 


Hays  V.  Jordan,  135. 

V.  Mouille,  325,  326. 

V.  Packet  Co.,  160. 
Hazard  v.  Day,  216. 

V.  Irwin,  178. 
Hazen  v.  Wilbelmie,  374. 
Head  V.  Diggon,  51. 

V.  Goodwin,  46. 

V.  Tattersall,  145. 
Healy  v.  Brandon,  259. 
Heath  v.  Stevens,  15. 
Heaver  v.  Lanahan,  351. 
Hecht  v.  Batcheller,  55. 
Hedden  v.  Roberts,  284. 
Heilbronn  v.  Herzog,  188. 
Heilbutt  V.  Hickson,  264,  265,  306, 

365. 
Heilman  v.  Pruyor,  379. 
Heintz  v.  Burkhard,  69. 
Heiser  v.  Mears,  161. 
Heisley  v.  Swaustrom,  108. 
Helliugs  V.  Russell,  40. 
Hemmer  v.  Cooper,  177. 
Hendrie   &   Boltlioff   Mfg.   Co.  v. 

Collins,  59. 
Hendrlckson  v.  Back,  246. 
Henderson  v.  Gibbs,  194. 
Henderson  &  Co.  v.  Williams,  30. 
Hennessey  v.  Daunourette,  179. 
Henry  Bill  Pub.  Co.  v.  Durgin,  11. 
Henry  v.  Vliet,  179. 
Henshaw  v.  Robins,  239,  250. 
Hentz  v.  Miller,  53. 
Hepburn  v.   Sewell,  58. 
Herman  v.  Haffenegger,  191. 
Herrick  v.  Carter,  12. 
Herrin  v.  Libbey,  197. 
Herring  v.  Hoppock,  136. 

V.  Skaggs,  377,  378. 
Herring-Marvin  Co.  v.  Smith,  292. 
Herron  v.  Dibrell,  239. 
Herryford  v.  Davis,  1.34,  135. 
Hersey  v.  Benedict,  190. 
Hershey  Lmnber  Co.  v.   Lumber 

Co.,  91,  99. 
Hervey  v.  Diamond,  138. 

V.  Locomotive  Works,  58,  134, 
137. 


Herzog  v.  Heyman,  362. 
Hessing  v.   McCloskey,   199. 
Hewes  V.  Jordan,  86,  91,  92. 
Hewison  v.  Guthrie,  314. 
Hewson-Herzog     Supply     Co.     v. 

Brick  Co.,  354. 
lleyman  v.  Neale,  113,  116. 
Heysham  v.  Dettre,  79. 
Heyworth  v.  Hutchinson,  366. 

V.  Knight,    116,   117. 
H.  H,  Franklin  Mfg.  Co.  V.  Mfg. 

Co.,  257. 
H.     Hirschberg    Optical    Co.     v. 

Michaelson,  178. 
Hibblewhite  v.  McMorine,  49. 
Hickman  v.  Haynes,  108,  355. 

V.  Richburg,  140. 
Hicks  V.  Stevens,  186. 
Hieskell  v.  Bank,  171. 
Higbee  v.  Trumbauer,  186. 
Higgins  V.  Burton,  52. 

V.  Kusterer,  80. 

V.  Moore,  304. 

V.  Murray,   157,  161. 

V.  Railroad  Co.,  278,  289. 

Y.  Senior,  104. 

V.  Spahr,  201. 
Higgons  V.  Burton,  44,  196. 
Hight  V.  Bacon,  255,  256. 

V.  Harris,  201. 

V.  Ripley,  64,  69. 
Hilby  V.  Mathews,  9. 
Hill  V.  Blake,  108. 

V.  Freeman,  139. 

V.  Heller,  283. 

V.  McDonald,  88,  298. 

V.  North,  241. 

V.  Rewee,  361,  363. 

V.  Smith,  355. 

V.  Spear,  211,  225. 
Hiller  v.  Ellis,  185. 
Hillestad   v.    Hostetter,    274. 
Kilmer  v.  Hills,  169. 
Hilton  V.  Shepherd,  17. 
Hinehman  v.  Lincoln,  88,  94. 
Hinckley  v.  Steel  Co.,  351. 
Hinde  v.  Liddell,  357. 


CASES    CITED. 
[Tbe  flguret  refer  to  pages. 1 


401 


IliiMle  V.  ^^^llt(?house.  71,  84,  HJ[\ 

ii:;. 

Iliads  V.  KolloRg.  G8. 
nine  V.  Roliorts,  141. 
Hlrech   V.   Lumber  Co..   132.   137. 

V.  Richardson,  199. 
Hlrschbcrg   Optical   Co.    v.    Illcli- 

ards,  177. 
Ilirsi^'born  v.  Caniioy.  12.j. 
Ilirth  V.  Grahniii,  7.">. 
Hitchcock  V.  (liddiiiKs,  HO. 
H.    McCoruilck     Liuuber    Co.    v. 

Wlnans.  2;)9. 
H.  M.  Tyler  Lumber  Co.  v.  CTiarl- 

ton.  128. 
Iloadly  V.  McLalne,  57.  01,  105. 
Hoai,'  V.  Place,  80. 
Hoare  v.  Ronnie,  287,  288,  289. 
Hobart  v.  Littlefleld,  155,  IGo. 

V.  Younp.  23*^.  230. 
Hobbs  V.  CaiT,  207. 

V.  Whip  Co.,  57,  88,  299. 
Ilochster  v.  De  la  Tour,  3(X>. 
Hockersralth  v.   Hanloy,  359. 
Hocking  v.  Hamilton,  276. 
Hodge  V.  Tufts,  .309,  371. 
Hodges  V.  Rowing.  110. 

V.  Wilkinson.  240.  2!7. 
Hodgson  V.  Le  Bret,  8G. 

V.  Loy,  329. 

V.  Temple.  210. 
Hoe  V.  Sanborn,  2.'»5,  2."9. 
Hoffman  v.  Carow,  28,  29. 

V.  Chamberlain,  245.  240. 

V.  Di.xon,   2.50,   251,   2.50. 

V.  King,  282,  283. 

V.  Noble.   194. 
Hogins  V.  riyiiipti.n.  237.  250. 
Hogiio  V.  Mackcy.  .54. 
Ill >1  bird  V.  Anderson.  199. 
Holbrook  v.  Burt.  180. 

V.  Connor.    170,    177. 

V.  Setchel,  59. 
Ilolcomb  V.  Nnblo.  1«;2. 
Tlolden  v.  O'Hrion.  210. 
Holden  Steam  Mill  v.  Westervelt, 
283. 


Hoiduni  V.  Ayer,  18G. 
Ilullaud  V.  Rea,  341. 

V.  Swain.  194. 
Hollemnn  v.  Fertilizer  Co.,  10. 
Hollins  V.  Hubliard.  321. 
Holloway  V.  Jaa^by,  2."><i,  372. 
Ibilinan  v.  .Tohnsoii,  '_"J0. 
ll.ilnu'S  V.  Blogg,  10. 

V.  Orogg.  21>4. 

V.  Hnskins,  9-1. 

V.  Tyson,  23S. 
Ilolroyd  v.  Marshall,  48. 
Holt  V.  Clarencieux.   14.   15. 

V.  O'Brien.  223. 

V.  Sims.   184. 
Holt  .Mfg.  Co.  V.  Ewing.  140. 
iloltz  V.  Peterson.  275. 
Home  Ins.  Co.  v.  Heck,  153. 
Homer  v.  Perkins,  170.  178. 
Ilonck  V.  Muller.  2.S7. 
Iloiioditch  V.  Desanges,  .322. 
Hood  V.  Bloch,  120,  200. 

V.  Todd.  5.5. 
Hooker  V.  Knab,  99. 
Hook  V.   .Mowre,  20.3. 
Hooper  V.  Story,  377. 
Hooven   &   Allison   Co.   v.   Wirtz, 

2.38. 
Hoover  v.  Mahor,  1.59. 

V.  Peters.  2(52. 

V.  Sidoner.  3(!8. 
Hope  V.   Ilayley,  40.  47. 
Hopkins  v.  Bishop.  201. 

V.  Cowen,  1(59. 

V.  Stefan,  217. 

V.  Tanqueray,  2.38. 
Hornby  v.  Lacy,  .301. 
Ilorncastle  v.  Farran,  31.5. 
Home  V.   Railroad  Co.,  359. 
Ilorr  V.  Barker,  149. 
Ilorsfall  V.  Th.inias,  1S7. 
Ilortoa  V.  Bullinton.  221. 

V.  McCarty.   114. 
Hosack  V.  Weaver,  29. 
HosMicr  V.   Wilson.  .305.  .307,   .351. 
Hotchkiss  V.  Illgglns.  145.  140. 
Hotham  v.  E.  India  Co.,  305. 


462 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Hough  V.  Rawson,  269. 
noughtaling  v.  Ball,  118. 
Houghton  V.  Furbush.  349. 
Housding  v.  Solomon,  234. 
House  V.  Alexander,  15,  18,  19. 

V.  Beak,  145. 

V.  Fort,  238. 
Houser  v.  Kemp,  9. 
Hovey  v.  Gow,  120. 

V.  Hobson,  23. 
Howard  v.  Daly,  306. 

V.  Dwight,  201. 

V.  Emerson,  262. 

V.  Harris,  13. 

V.  Hoey,  260. 
Howard  Iron  Works  v.  Elevating 

Co.,  259. 
Howe  V.  Batchelder,  75. 

V.  Hayward,  98. 

V.  Palmer,  91. 

T.  Smith,  98. 
Howe  Mach.  Co.  v.  Willie,  361. 
Howell  V.  Berger,  185. 

V.  Biddleeom,  186. 

V.  Boudar,  11. 

V.  Coupland,  309. 

V.  Stewart,  212. 
Howland  v.  Woodruff,  42,  43. 
Howley  v.  Whipple,  115. 
Hoyt  V.  Casey,  19. 
Hubbard.  Ex  parte,  10. 

V.  Bliss,  139. 

V.  George,  204. 
Hubbell  V.  Flint,  212. 

V.  Meigs,  190. 
Hudson  V.  Weir,  72. 
Hudson  Furniture  Co.   v.   Carpet 

Co.,  80. 
Huff  V.  JlcCauley,  76. 
Huggins  V.  Cement  Co.,  359. 
Hughes  V.  Harlam,  134. 

V.  Kelly,  139. 
Huguenot  Mills  v.  Jempson  &  Co., 

349. 
Hulet  V.  Achey,  178. 

V.  Stratton,  220. 
Hull  V.  Caldwell,  247. 


Hull  V.  Hull,  48. 

V.  Pitrat,  360. 
Hull  Coal  &  C.  Co.  V.   Coke  Co., 

290. 
Hull's  Assignees  v.  Connolly,  19. 
Huniaston  v.  Telegraph  Co.,  60. 
Humble  v.  Mitchell,  72. 
Hummel  v.  Stern,  235. 
Humphrey  v.  Merriam,  183. 

V.  Smith,  185. 

V.  Tatman,  49. 
Humphreys  v.  Comline,  262. 
Humphreysville     Copper     Co.     v. 

Mining  Co.,  355. 
Humphries  v.  Carvalho,  144. 
Hunn  V.  Bowne,  321. 
Hunt  V.  Hecht,  87,  89,  90. 

V.  Massey,  14. 

V.  Sack,  244. 

V.  Wyman,  144,  145. 
Hunter  v.  Bosworth,  46,  49. 

V.  State,  1.58. 

V.  Talbot,  316. 

V.  Tolbard,  24. 

V.  Wetsell,  99,  277. 
Hunter  Bros.  Milling  Co.  v.  Kram- 
er Bros.,  157. 
Hunting  v.  Downer,  362. 
Huntington  v.  Hall,  244. 

V.  Lombard,  239. 
Hurd  V.  Bickford,  194. 

V.  Fleming,  138. 

V.  Hall,  362. 
Hurff  V.  Hires,  149. 
Hurst  V.  Mfg.  Co.,  1.57. 
Huschle  y.  Morris,  205. 
Hussey  v.  Horne-Payne,  107. 

v.  Thornton,  135. 
Hutcheson  v.  Blakeman,  51. 
Hutchings  v.  Munger,  139. 

V.  Nunes,  325. 
Hutchins  v.  Gilchrist,  274. 

V.  Sprague,  203. 
Hutchinson  v.  Bowker,  51. 

V.  Ford,  48. 

V.  Hunter,  149. 


CASES 
[The  figures 

Ilutbmacber    v.    Harris'    Adm'rs. 

58. 
Ilutton  V.  Jloore,  00. 
11.    W.  Williams  Transj).   Line  v. 

Traii.sportation  Co.,  lH'iH. 
Hyde  V.  Cooksou,  7. 
V.  Latbrop,  154. 
V.  Wreiuli,  51. 
Hydraulic  EiiKinoeriiiR  Co.  v.  IMt- 

Hartie,  300. 
Hynds  V.  Hays.  224. 


lasigi  V.  Roseiistoin.  292. 

hleal  WreuL'b  Co.  v.  Macbine  Co., 

35G. 
Ide  V.  Stanton,  64,  105. 
I.ianis  V.  Hoffman.  113. 
Illinois  LoatbtT  Co.  v.  Flynn,  ISO. 
llsley  V.  Stubbs,  328. 
IiiilJcrial  Bank  v.  Docks  Co.,  324. 
Imperial  Ix)an  Co.  v.  Stone,  23. 
Imperial    Portrait   Co.   v.    Bryan, 

2(W. 
Indiana  Mfg.  Co.  v.  Hayes,  .Mi,  57. 
Industrial  Works  v.  MitclicII.  300. 
Iiigalls  V.  Herrick,  202,  200,  207. 
;  iiglis  V.  Stock.  142. 

V.  Usberwood,  330. 
Ingrabam  v.  Baldwin,  22. 

V.  Railroad  Co.,  2.".!). 
Inbabltauts  of  Westli»'Id  v.  .Mayo, 

IGO. 
Insurance  Co.  v.  Kiger,  30. 
International  Pav.  Co.  v.  Macbine 

Co.,  200. 
Iron  Cliffs  Co.  v.  Bubl,  282. 
Irons  V.  Kentner,  0. 

V.  Webb,  77. 
Iroquois  Furnace  Co.  v.  Mfg.  Co., 

2.58,  371. 
Irvine  v.  Stone.  81. 
Irwin  V.  McDowell.  !). 

v.  Tbompson.   237. 

V.  Williar.  217,  218. 

V.  Wilson,   55. 


tiTKi).  4r,;{ 

refer  to  pages.] 

Isbcrwood  V.  Wbitiimre,  294. 
Ivans  V.  Laurj-,  258. 


.lackson  v.  Allaway,  209. 

V.  Ca<lwcll.  .30. 

V.  Collins,  178.  180. 

V.  Covcrf.s  -Vdm'r,  04. 

V.  I/owi",  100. 

V.  My.Ts.  203. 

V.  Stanliold,   118. 

V.  Tupper,  99. 
J.  A.  Coates  &  Sons  v.  Buck,  55. 

V.  Early,  55. 
Jacob  V.  Kirk,  109. 
.lacob    Strauss    Saddlery    Co.    v. 

Kingman,  142. 
■lalTrey  v.  Brown,   180. 

V.  Wolf,  1S8. 
.lames  V.  Adams,  ,300. 

V.   Borage.  2:59. 

V.  Com..   I.'i8. 

V.  (iridin.  3,30.  .3.32. 

V.  .Muir.  01.  10.-,,  100. 

V.  Patten.   111. 

V.  I'lank.  7. 

V.  Vane.  302. 
.Tames  Smitb  Woolen  Macb.  Co.  v. 

Holden,  120. 
Jamison  v.  Simon.  91. 
.T:iiiney  v.  Sleejier.  275. 
.lanvrin  v.  Maxwell,  95. 
.Jarrett  v.  Goudnow,  "Jll. 
.laullcry  v.   Britten.   Ki. 
.Jeffrey  v.  Bigelow.  175. 
.Tiffris  V.  H.  Co.,  .'VJO.  .329. 
.Teudwine  v.  Slade,  2^0. 
.Tt'uUs  V.  Fulmer,  ."..30. 
Jenkins  v.  Eicbelherger,  7. 

V.  Jarrett,  12,3. 
Jenkyns  v.  Brown,  9,  107,  171. 

V.  Usborne,  40.  324. 
Jenner  v.  Sndtli.  1.53.  1.54. 
Jenness  v.  Iron  Co.,   107. 

V.  Wendell.   SI. 
Jeraulds  v.  Brown.  149. 
Jetton  V.  Tobey,  30. 


464 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Jewell  V.  Knight,  199. 
Jewett  V.  Lincolu,  205. 

V.  Warrea,  274. 
J.  H.  Labaree  v.  Grossman,  310. 
J.  I.  Case  Plow  Works  v.  Niles  & 

Scott  Co.,  237,  266,  377. 
J.  I.  Case  Tbresliing-Machine  Co. 

V.  McKinnon,  242. 
J.  M.  Arthur  &  Co.  v.  Blackman, 

142. 
J.  M.  Brunswick  &  Balke  Co.  v. 

Valleau,  211. 
John  Deere  Plow  Co.  v.  Gorman, 

346. 
John  Griffith's  Corp.  v.  Humber, 

112. 
Johnson  v.  Agricultural  Co.,  369. 

V.  Allen,  356. 

V.  Buck,  71,  106,  109,  113,  114. 

V.  Credit  Lyonnais,  31,  40. 

V.  Cuttle,  89. 

V.  Delliridge,  105. 

V.  Dodgson,  111. 

V.  Elwood,  123. 

V.  Eveleth,  327,  330. 

V.  Farnum,  317. 

V.  Filkington,  51. 

V.  Hulings,  215. 

V.  Hunt,  159. 

V.  Insurance  Co.,  16,  233. 

V.  Latimer,  266. 

V.  Laybourn,  245. 

V.  Lines,  19,  20. 

V.  McDonald,  235. 

V.  Monell,  179. 

V.  Oehmig.  247. 

V.  Raylton,  265. 

V.  Seymour,  177. 

V.  Society,   102. 
Johnson-Rrinkham    Com.    Co.    v. 

Bank,  125. 
Johnston  v.  Faxon,  356,  378. 

V.  Fessler,  51. 

V.  Miller,  218. 

V.  Trask,   71. 

Y.  Whittemore.  141. 
Johnstone  v.  ]\Lirks,  19. 

V.  Milling.  306. 


John  V.  Farwell  Co.  v.  Boyce,  184. 

V.  Hilton,  192. 

V.  Linn,  ISO. 
Jonassohn  v.  Young,  287. 
Jones  V.  Baldwin,  10. 

V.  Bank,  89. 

V.  Bloomgarden,  261,  293,  295, 
299. 

V.  Brewer,  169. 

V.  Bright,  257. 

V.  Clark,  137. 

V.  Dow,  103. 

V.  Earl,  337,  338. 

V.  Flint,  77. 

V.  George,  250,  251,  379. 

V.  Gibbons,  278. 

V.  Jennings  Bros.  &  Co.,  346i 

V.  Just,  255,  257,  260,  377. 

V.  Kemp,  8. 

V.  King,  203. 

V.  McEwan,  374. 

V.  Padgett,  256. 

V.  Rahilly,  10. 

V.  Reynolds,  73,  87. 

V.  Richardson,  46. 

V.  Ryde,  362. 

V.  Schneider,  159. 

V.  Snider,  140. 

V.  Tye,  106. 

V.  U.  S.,  309,  310. 

V.  Waite,  223. 
.Joplin  Water  Co.  v.  Bathe,  175. 
Jordan  v.  Norton,  51. 

V.  Parker,  194. 

V.  Patterson,  356,  360. 
Joseph  V.  Lyons,  49. 
Joslin  V.  Cowee,  189. 
Josling  V.  Kingsford,  248. 
.Tournal  Printing  Co.  v.  Maxwell, 

187. 
Joyce  V.  Adams,  129,  142. 

V.  Swann,  56,  59,  165. 
J.  T.  Stewart  &  Son  v.  Cook,  106. 
Judd  V.  Weber,  181. 
.Tulius      Winkelmeyer       Brewing 

Ass'n  V.  Nipp.  225. 
Justice  V.  Lang,  105,  110. 


CASKS 
[Tbe  figures 


K 


Kadlsh  T.  Tounp.  30G,  350. 
Kahu  V.  Klabunde,  145.  14G. 

V.  Walton.  218, 
Kaln  V.  Old,  237. 
Kalamazoo  Corset  Co.  v.   Simon, 

282. 
Kalkhofif  V.  Nelson,  306. 
Kaye  v.  Brett.  304. 
Kearley  v.  Tliompson,  222. 
Kearney  Milling  &  E.  Co.  v.  Rail- 
road Co.,  338. 
Kearon  v.  Pearsons,  309. 
Kearslake  v.  Morpin,  99. 
Keck  V.  State,  138. 
Keeler  v.  Goodwin,  149,  151,  319. 
320. 

V.  Vandervere,  126. 
Keln  V.  Tupper,  57,  129,  141,  285. 
Kelwert  v.  Meyer,  89. 
Keller  v.  State,  158. 

V.  Strasberger,  345. 
Kelley,   Ma  us  &  Co.   v.   Carriage 

Co.,  355,  359. 
Kelly  V.  Oil  Co.,  80. 
Kellogg  V.  Frohllck,  349. 

V.  Turpie.  188. 

V.  Witherhead,  88. 
Kellogg  Bridge  Co.  v.   Hamilton, 

255,  257. 
Kelsea  v,  Mfg.  Co.,  15G.  291. 
Kelsey  v.  Harrison,  180. 
Kemp  V.  Falk.  320.  .330,  332,  333, 
330.  337,  3?,8. 

V.  Freeman.  308. 

V.  Watt.  303. 
Kenipson  v.  Saundors,  361. 
Kendal  v.  Mar.shall,  .332. 
Kendall  v.  May,  24. 

V.  Wilson.   ISO. 
Kennedy  v.  Duncklee,  30. 

V.  Mall  Co.,  249. 

V.  Rifliardson,  177. 

V.  Whitwell,  364. 
Kennor  v.  Harding.  239.  240.  241. 
Kenniston  v.  Ham,  60. 
Kent  V.  Bomsteln.   191. 

TirF.SALES(2DED.)— 30 


CITED.  465 

refer  to  pages.] 

KcMit  V.  Friedman.  374, 

V.  Huskiiis<in.  87. 
Kent    Iron    &    Hardware    Co.    v. 

Norhock,   120. 
Kentucky  Uoflning  Co.  v.  Reflnlng 

Co.,  170. 
Kenworthy  v.  ScboOeld,  71,  109. 
Korkhof  V.  Paper  Co.,  99. 
Kern  v.  Thurber,  194. 
Kerr  v.  Henderson,  124, 

V.  Shrader,  81. 
Kessler  v.    Sniitb,   105,   29L 
Kester  v.  Miller.  376. 
Keswick  V.  Rafter,  11. 
Ketcbum  v.  Catlin.  53. 
Kt'y  V.  Cotesworth,  165. 
i\<ystone   Mfg.   Co.  v.   Casselllus, 

140. 
i-Ccystone  Watch  Case  Co.  v.  Bank. 

10. 
Kibble  V.  Gough,  90. 
Kidder  v.  Blake,  224. 
Klleen  v.  Kennedy,  75, 
Kilgore  v.  Bruce.  177. 
Killmore  v.  Howlett,  74. 
Kimball  v.  Bangs,  178. 

V.  Cunniiiijlmm,  189,  191. 

V.  Hildretb,  9. 
Kimbell  v.  Morcland,  182. 
Kimberly  v.  Patcbin,  149,  150,  160. 
King  V.  Eagle  Mills,  182. 

V.  Fa  1st,  353. 

V.  Inhabitants  of  Chlllesford, 
14. 

V.  Jannan.  128.  129. 

V.  .Mt'rriman,  77. 

V.  Waterman.  306. 
Kingman  v.  Davis.  105. 

V.  Donlson,  .326. 

V.  Iloimqnlst,  1-19. 
Kingman  &  Co,  v.   Dcnlson,  326, 
.^30. 

V.  Mfg.  Co.,  351,  352. 

V.  Wml'ou  Co.,  27S,  .351. 
King  Pbiiip  Mills  v.   Slater,  28S. 
Kingsbury  v.  Kirwan,  218. 

V.  Smith,  194- 


466 


CASES  CITED. 
[The  figures  refer  to  pages.l 


Kingsford  v.  Merry,  44. 
Kingslej-  v.  Holbrook,  75. 

V.  Johnson,    240. 

V.  Siebrecht,  104,  110. 

V.  White,    274. 
Kinkead  v.  Lynch,  348. 
Kinloch  V.  Craig,  325. 
Kinney  v.  McDermot,  221. 

V.  Railroad  Co.,  56. 
Kinsey  v.  Leggett,  43,  196. 
Kintzing  v.  McElrath,  175. 
Kipp  V.   Lamoreaux,   201. 
Kirby  v.  Johnson,  88,  96. 
Kircher  v.  Conrad,  238. 
Kirkeby  v.  Erickson,  75. 
Kirtland  v.  Moore,  233. 
Kirven  v.  Plnckney,  205. 
Kitchen  v.   Spear,  329. 
Kitson  V.  Farwell,  180. 
Kitson  Mach.  Co.  v.  Hoiden,  127. 
Kleeman  v.  Collins,  102. 
Kline  V.  L'Amoureux,  19. 
Klinitz  V.   Surry,  84,  103. 
Knapp  Electrical  Works  v.  Wire 

Co.,  157. 
Kneeland  v.  Renner,  120. 
Knight  V.  Barber,  72. 

V.  Mann,  86,  91. 

V.  Worsted  Co.,  228. 
Knights  V.  Wifeen,  30,  321. 
Knoblauch  v.   Kronschnabel,   295, 

299. 
Knowlton  v.  Spring  Co.,  222. 
Knox  V.  American  Co.,  31,  32. 
Kohl  V.  Lindley,  255. 
Kohn  V.  Melcher,  211. 
Kountz  V.  Kirkpatrick,  354. 

V.  Price,  217,  222. 
Kramer  v.  Messner,  345. 
Kraus  v.  Thompson,  189. 
Kribs  V.  Jones,  354. 
Kriete  v.  Myer,  106. 
Krohn  v.  Bantz,  98,  99.      ■ 
Knilder  v.  Ellison,  1.55. 
Krumbhaar  v.  Birch,  247. 
Kunkle  v.  Mitchell,  27G. 


Kuppenheimer  v.  Wertheimer,  154. 
Kyle  V.  Kavanagh,  53. 


La  Crosse  Plow  Co.  v.  Helgeson, 

266. 
Ladd  V.  Dillingham,  223. 

V.  King,  108. 

V.  Rogers,  220,  221. 
Laidlaw  v.  Organ,  175. 
Laidler  v.  Burlinson,  161. 
Laing  v.  McCall,  223. 
Laird  v.  Pim,  346,  349. 
Lake    Shore   &   M.    S.    R.   Co.   v. 

Richards,  306,  351. 
Lamb  v.  Attenborough,  40. 

V.  Crafts,  67. 
Lambert  v.  Heath,  362. 
Lamberton  v.  Dunham,  183. 
Lamm  v.  Ass'n,  1.82. 
Lamond  v.  Davall,  339. 
Lamprey  v.  Sargent,  150. 
Lancaster  Co.  Nat.  Bank  v.  Moore, 

23. 
Landa  v.  Lattin  Bros.,   173. 
Landigan  v.  Mayer,  138. 
Landreth  v.  Wyckoff,  255. 
Lane  v.  Chadwick,  157. 
La  Neuville  v.  Nourse,  12. 
Lanfear  v.  Sumner,  207. 
Langdon  v.  Clayson,  17. 
Langfort  v.   Tiler,  342. 
Lang  V.  Henry,  107. 
Langridge  v.  Levy,  184. 
Langstafe  v.   Stix,  332. 
Langton  v.  Higgins,  47,  158. 
Lansing  Iron  &  Engine  Works  v. 

Wilbur,  136. 
Laporte  Imp.  Co.  v.  Brock,  371 
L'Apostre  v.  L'Plaistrier,  243. 
Larkin  v.  Johnson,  126. 

V.  Lumber  Co.,  283. 
Larmon  v.  Jordan,  51. 
Larned  v.  Andrews,  214. 
Larson  v.  Aultman  &  Taylor  Co., 
371. 


La  Rue  v.  Gllkyson,  24. 
Las.siug  V.  Jiiim-s,  111). 
Latham  v.   Shii)l»'j-,  242. 

V.  Summor,   141. 
Latlirop  T.  Clayton.  201. 
Lau^'hton  v.  Harden,  2(K). 
La   Valley  v.  liaveuua,  143. 
Laveiy  v.  I'urscll,  79. 
Law  V.  riodsoii,  214. 

V.  Stokes,  304. 
Lawder  &  Sons  Co.  v.  Grocery  Co., 

290. 
Lawes  v.  Purser,  3<j3. 
Lawler  v.  Nlchol,  7. 
Lawrence  v.  Burnliam,  201. 

V.  Porter,  a.'iti. 
Lawrence  Canning  Co.  v.  Mercan- 
tile Co..  .'^49. 
Ivaw.scju  V.  Lovejoy,  17. 
Lawton  v.  Blitch,  218. 
Lawyer  v.  Post,  108. 
Laythoarp  v.  Bryant,  118. 
Leadbetter  v.  Ins.  Co.,  233. 
Leask  v.  Scott.  335. 
Leather  Cloth  Co.  v.  Hieronimus, 

102,  108. 
Leavltt  V.  Files.  23. 
V.  Fletcher,  241. 
Ledyard  v.  Hihbard,  8. 
Lee  V.  Bangs,  374. 
V.  Bayes,  28. 
V.  Butler,  9,  41.  . 
V.  Cherry,  102. 
V.  Gaskell,  79. 
V.  Griffin,  05,  66,  67,  69. 
V.  Hills.  107. 
V.  Kimball.  335. 
V.  Mugger Idge,  2.5. 
Leedom  y.  Mayer,  180. 
I^fforts  V.  Weld,  278. 
I>efurgy  v.  Stewart.  61, 
Legg  V.  Willard,  207. 
Leggat  V.  Brewing  Co.,  201,  293. 
Leggett  &  Meyer  Tobacco  Co.  v. 

Collier,  89. 
Lohr  V.  Brodbeck,  201,  202. 


CASES    CITKD.  ^QJ 

[Tta«  flgurea  refer  to  pagea.] 

Leigh  V.  Hailroad  Co.,  31. 
Leith's  Estate,  In  re,  314. 
I>emmon  v.  Beeman.  l.'i. 
Lennox  v.  Murphy,  308. 
Lenox  V.  Fuller,  190. 
Lenz    V.    Bluke-McFall    Co.,    257, 
298. 
V.  Harrison,  10. 
I-eonard  v.  Clough.  78. 
V.  Co.x.  (50. 
V.  Davis,    97,    123.    129,    288, 

273,  274,  302,  314, 
V.  :\Iodford,  70,  88. 
V.  Pnrtier,  341. 
Lerned  v.  Wannemarher,  101,  109. 
Leroux  v.  Brown,  118. 
Lesassier    v.    The    Southwestern, 

33.5. 
Lester  V.  McDowell,  125. 
r.evasseur  v.  Cary.  123, 
I.even  V.  Smith,  124. 
Levi  V.  Booth,  32. 
Levlno  v.  Moore  Co.,  283, 
Levy  V.  Green,  1.59,  283. 
r.ewenberg  v.  Hayes.  132, 
Lewis  V.  Bank,  36. 
V.   Brass,    110. 
V.  Evans,  70. 
V.  (Jreider,  .340, 
V.  Peake,  378. 

v.  Bdinitree,   2,50,  30.5,  372. 
V.  Welch.  21.5. 
fyf'wter  V.   Lindley,  .59. 
Libby  v.  Downey,  214. 

V.  Haley,  309. 
Llchtcnstein  v.   Habolinsky,  375. 
Liekbarrow  v.   .Mason,  333,  334, 
Lifshitz  V.  McConnell,  375. 
Lightburu  v.  Cooper,  308. 
Lighthouse  v.  Bank.  148. 
Light  V.  Jacobs,  180. 
Lightman  v.  Boyd,  194. 
I.ilienthal  v.  Browing  Co.,  186, 
I.illle  V.  Dunbar,  75. 
Lilly    V.    Lilly,    Bogardus    &    Co., 

300. 
I.illywhite  V.  Dovermx,  97. 


468 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Lincoln  v.  Buckmaster,  22. 

V.  Gallagher,  277,  295. 

V.  Quynn,  137. 
Lindon  v.  Eldred,  341. 
Lingham   v.   Eggleston,   120,   127, 

128,  141. 
Linton  v.  Porter,  247. 
Lippincott  v.  Rich,  139. 
Litchfield  v.  Hutchinson,  183. 
Littauer  v.  Goldman,  362. 
Litt  V.  Cowley,  337. 
Little  V.  G.  E.  Van  Syckle  &  uo., 

256,  258. 
Livermore  v.  Boutelle,  203. 
Livingston  v.  Wagner,  61. 
Load  V.  Green,  179. 
Lobdell  V.  Hopkins,  275. 

V.  Horton,  129. 
Lock  V.  Sellwood,  30. 
Locke  V.  Smith,  21. 

V.  Williamson,  371. 
Lockhart  v.  Bonsall,  277,  282. 
Lockwood  Mfg.  Co.  v.  Regulator 

Co.,  234. 
Loeb  V.  Peters,  325,  326,  334,  335. 
Loeffel  V.  Pohlman,  196. 
Loeschman  v.  Machin,  40. 
Logan  V.  Le  Mesurier,  128. 
Lombard   Water-Wheel   Governor 

Co.  V.  Paper  Co.,  156,  238,  266. 
Lomi  V.  Tucker,  241. 
London  &  N.  W.  Ry.  Co.  v.  Bart- 

lett,  330. 
Lonergan  v.  Stewart,  8. 
Long  V.  Hartwell,  108. 

V.  Hickingbottom,  244. 

V.  Millar,  109. 

V.  White,  79. 

V.  Woodman,  179. 
Loomis  V.  Bragg,  135. 
Lorain  Steel  Co.  v.  Railroad  Co., 

136,  141. 
Lord  V.  Buchanan,  138. 

V.  Edwards,  242. 

V.  Goddard,  182. 

V.  Thomas,  351. 
Lorymer  v.  Smith,  264,  294,  297. 


Losecco  V.  Gregory,  50. 

Louis  Cook  Mfg.  Co.  v.  Randall, 

56. 
Louis  F.  Fromer  &  Co.  v.  Stanley, 

181. 
Louisville  Asphalt  Varnish  Co.  v. 

Lorick,  102,  110. 
Louisville    Lithographic    Co.    v. 

Schedler,  296. 
Louisville,  N.  A.  &  C.  R.  Co.  v. 

Iron  Co.,  278. 
Lovatt  V.  Hamilton,  235. 
Lovejoy  v.  Michels,  61. 

V.  Murray,  58. 
Lowe  V.  Harris,  106. 
Low  V.  Pew,  50. 
Luhrig  Coal  Co.  v.  Jones  &  Adams 

Co.,  291. 
Lucas  V.  Dixon,  102. 
V.  Nichols,  277. 
Lucile    Min.    Co.    v.    Fairbanks, 

Morse  &  Co.,  300. 
Lucy  V.  Monflict,  299. 
Ludlum  V.  Rothschild,  49. 
Ludwig  V.  Fuller,  206. 
Lukens  v.  Aiken,  189. 
Lund  V.  McCutchen,  60. 
Lundy    Furniture   Co.    v.    White, 

135. 
Lunn  V.  Thornton,  46. 
Lupin  V.  Marie,  317. 
Luthy  V.  Waterbury,  242. 
Lydig  V.  Braman,  105. 
Lynch  v.  Curfman,  240,  368. 
V.  Daggett,  127. 
V.  O'Donnell.  127. 
V.  Scott,  225. 
V.  Willford,  145. 
Lyon  V.  Bertram,  369,  375. 

V.  Lenon,  8. 

Lyons  v.  Briggs,  176. 

V.  Hill,  296. 

M 

Maberley  v.  Sheppard,  87. 
McAleer  v.  Horsey,  185. 
McArthur  v.  Bloom,  25. 


McArthur  Co.  v.  Bank.  100. 
McBee  v.  C^asar,  S. 
MeRride  v.  Silverthorne,  GO. 
McCaa  v.  Drui;  Co.,  250. 
McCaffrey  v.  Woodin,  47,  49. 
MoCarren  v.  McNulty,  234. 
McCarthy  v.  Henderson,  15. 

V.  Mash,  84. 
McCarty  v.  Blevins,  48. 
MeClain  v.  Davis,  22. 
MeClintock  v.  Emick,  239. 
McClintock's  Appeal,  70. 
McClung  V.  Kelley,  12.S,  2C0. 
McClure  v.  Brifrfxs,  234. 

V.  Jefferson.  20."),  375. 
McCouib  V.  Donald's  Adm'r,  13G, 

V.  Wright,  114. 
McConnel  v.  Murphy,  286. 
McConnell  v.  Brlllhart,   103,   112. 

V.  Hughes,   GO. 

V.  Kitchens,  214. 
McCorkell  v.  Karhoff,  178. 
McCormick  v.  Basal,  306. 

V.  Hamilton,  349. 

V.  Kelly,  241. 

V.  Littler,  24. 

V.  Vanatta,  378. 
McCormick  Harvesting  Mach.  Co 
V.  Balfany,  34G. 

V.  Chesrown,  234,  300. 

V.  Cochran,  300. 

V.  Knoll,  3G9. 

V.  Koch,  141. 

V.  Markert,  348. 
McCormick   Lumber   Co.   v, 

ons,  258. 
McCraw  v.  Gilmer,  314. 
McCray  Refrigerator  &  C. 

V.   Woods,  2.")8. 
McCrea  v.  Purmort,  110. 
McCrillis  V.  Allen.  .52,  106. 
McCulloch  V.  McKee,  304. 
McCullough    Bros.   v.    Armstrong, 

291. 
McDermid  v.  Redpath,  355. 
Macdonald  v.  Longbottom,  106. 


CASES    CITKD.  469 

[Tb«  figures  refer  to  pages.] 

.McDonald  Cotton  Co.  t.  Mayo,  320. 
.MrDonald    Mfg.    Co.    v.    Thomas, 

240. 
McElroy  v.  Soery,  103,  a'iO. 
NrcElwee  V.  Lumber  Co.,  127,  814, 

310,  320,  321. 
McEwau   V.    Smith,   40,   319,   820. 
McEwen  v.   Morey,   61. 
MfFarland  v.  Newman,  2^8. 
MiFetridge  v.   Piper,  332. 
McGill  V.  Lumber  Co.,  318,  338. 
McGiunis  V.  Johnson  Co.,  277. 
.McGrath  v.  Cannon,  3<-3. 

V.  Gegner,   200,   3.54. 
-McGraw  v.  Fletcher,  20G. 

V.  Solomon,  194. 
MacGreal  v.  Taylor,  15. 
McGrew  v.  Produce  Ex.,  218. 
McHenry    v.    Bulifant,    261.    277. 

203. 
Mellose  V.  Fulmer,  356. 
.Mcintosh  V    Brill,  51. 
Mclntyre  v.  Parks,  21L 
Mack  V.  Story,  lao. 

V.  Tobacco  Co.,  11. 
Mackaness  v.  Long,  132. 
^[cKanna  v.  Merry,  18,  19,  20. 
Mackay  v.  Dick.  305. 
.McKee  V.  Ba inter,  291. 

v.  Garcelon,  206. 
.Mackollar  v.   Plllsbury,  149.  201. 
McKenzie  v.  Donnell.  23. 

v.  Rothschild,  181. 

V.  Seeberger,    178. 

V.  Weineman,    181,   1.85. 
McKercher  v.  Curtis,  354. 
Mackey  v.  Swartz,  299. 
McKibl>in  v.   .Martin,   202. 
McKindly  v.  Dunham,  .'J04. 
MoKinnell  v.  Robinson.  210. 
McKimioy  v.  Andrews,  211. 

V.  Bank,  181. 

V.  Bradlee.  146. 
McKlnnon  Mfg.  Co.  v.   Fish  Co., 

2.-i9. 
McKnIght  V.  Dunlop,  84. 


Win- 


S.  Co. 


470 


CASES   CITED. 
[The  figures  refer  to  pages.] 


McLane  v.  Johnson,  203. 
McLaughlin  v.  Marston,  156. 

V.  Piatti,  149. 
Maclay  v.  Harvey,  51. 

V.  Perry,  286. 
Maclean  v.  Dunn,  112,  339. 

V.  Nicoll,   106,   107. 
McLellan  v.   Williams,   255. 
McMillan  v.  Fox,  309. 

V.  Lamed,  138. 
McMinn  v.  Richmonds,  21. 
McMullen  v.  Helberg,  107. 

V.  Riley,  81. 
McNaughton  v.  Wahl,  237. 
McNeal  v.  Braun,  156. 
McNeil  V.  Armstrong,  235. 

V.  Bank,  32. 
Macomber  v.  Parker,  128,  129. 

V.  Railroad  Co.,  77. 
McPherson  v.  Lumber  Co.,  141. 

V.  Walker,  307. 
McQuaid  v.  Ross,  255. 
Maeullar  v.  McKinley,  185. 
Maddison  v.  Alderson,  118. 
Magee  v.  Billingsley,  264. 

V.  Lumber  Co.,  235. 

V.  Sc-ott,  221. 
Magnes  v.  Seed  Co.,  341,  347,  350. 
Magruder  v.  Gage,  156. 
MahaCfey  v.  Ferguson,  238. 
Maillard  v.  Duke  of  Argyle,  303. 
Maimisburg  Twine  &  Cordage  Co. 

V.  Wohlhuter.  377. 
Mairs  v.  Railroad  Co.,  34. 
Malcomson  v.  Mills,  310. 
Malone  v.  Plato,  96. 

V.  Stone  Co.,  126. 
Malsby  v.  Young,  266. 
Mamlock  v.  Fairbanks,  182. 
Manasquam   Gravel   Co.   v.   P.   S. 

Ross,  237, 
Manby  v.  Scott,  24. 
Mandlebaum  v.  Gregovich,  214. 
Manhattan    Brass    Co.    v.    Reger, 

181. 
Manheimer  v.  Harrington,  180. 


Maun  v.  Everston,  261. 

V.  Glauber,  291. 
Manning's  Case,  30. 
Mansfield  v.  Trigg,  363,  364. 
Manton  v.  Ray,  361. 
Marbury  v.  Brooks,  199. 
;Margetson  v.  Wright,  241. 
-Market-Overt,  Case  of,  26. 
Markham  v.  Jaudon,  97. 
Marsden  v.  Cornell,  58. 
Marsh  v.  Falker,  183. 

V.  Hyde,  84,  99. 

V.  Keating,    28. 

V.  McPherson,  354,  373. 

V.  Pier,  58. 

V.  Rouse,  94. 

V.  Webber,  1T5. 
Marshall  v.  Clark,  356,  359. 

V.  Drawhorn,  241. 

V.  Duke,  244. 

V.  Ferguson,  77,  78,  88. 

V.  Green,  72,  75,  76,  78,  97. 

V.  Lynn,   107. 

V.  Rutton,  25. 
Martin  v.  Adams,  146,  318. 

V.  Hurlbut,  129. 
Martin  Bros.  &  Co.  v.  Lesan,  148. 
Martindale  v.  Booth.  200. 

V.  Smith,   122,   279,  315,  338, 
339,  342. 
Martineau  v.  Kitching,   128,  130. 

141,  142. 
Martz  V.  Putnam,  154. 
Marvin  v.  Wall  is,  95. 
Marvin  Safe  Co.  v.  Norton,  136. 
Maryland  Fertilizing  &  Mfg.  Co. 

V.  Lorentz,  228. 
Mason  v.  Bohannan,  240. 

V.  Chappell,  182,  239,  258. 

V.  Decker,  343. 

v.  McLeod,  223. 

V.  Smith.  290. 

V.  Wilson,  330,  331. 

V.  Wright,  15,  19. 
Massey  v.  State,  13. 
Masson  v.  Bo  vet,  191,  192. 


CASKS    CITED. 
[The  flguros  refer  to  pagea.] 


Malonio  v.  Iluiwitz.  211,  220. 
Matlieiiy  v.  Masou,  21(j. 
Matteson  v.  Holt,  .'^GS. 

V.  Mllllns  Co..  141. 
Matthews  v.  Baxter,  22,  24. 

V.  Bliss,   17G. 
•Muttliiessen  &  WeUlu-rs  Ri'fiiiing 

Co.  V.  McMalion's  Adiu'r,  22,  23, 

93.  95,  99.  1(30. 
Mattiee  v.  Allen,  99. 
.MaxlJeld  v.  Jones.  214. 
Maxted  v.   Fowler,    177. 
Maxwell  v.  Brown.  84.  94, 
V.  Lee.  29.5.  373. 
V.  Shoe  Co..  180. 
May  V.  Ward.  07.  105. 
Mayberry  v.  Mill  Co..  129, 
Mayer  v.  Adrian,  103. 

V.  Child,  73. 
Maynard  v.  Maynard,  175. 

V.  Tabor,  51. 
Mayor  v.  Sehaub  Bros.,  2S9. 
Mead  v.  Parker,  106. 

V.  Lumber  Co..  284. 
Meade  v.  Smith,  59.  205. 
Meader  v.  Cornell,  .'^.07. 
Means  v.  Williamson.  95. 
Mears  v.  Waples,  180. 
Mechanical   Boiler-Cleaner  Co.  v. 

Kellner,  04,  70.  92. 
Medlniry  v.  Watson.  177. 
Medina  v.  Stoushton.  243. 
Meehan  v.  Sharp.  73.  91. 
Mee  V.  McNider.  1.5G. 
Meincke  v.  Falk.  09. 
Melcholr    v,    McCarty,    215.    217. 

222. 
Moldriira  v.  Snow.  140. 
Mellon  V.  Davison.  lOG. 
Memphis  &  L.  R.  Co.  v.  Freed,  324. 
Menken  v.  Baker.  201. 
^Slent/.  V.  Newwittor,  103. 
Meorsey  Steel  &  Iron  Co.  v.  Nay- 

lor,  279. 
Merchant    Banking    Co.    v.    Steel 

Co..  .321.  322. 
Merchants'    Bank    of    Detroit    v. 

Hibhard.  273.  319. 


471 


Bank    v.    Mc- 


.Merfhant.s'    Exch. 
CJraw.  120.  109. 
.Men-hants'    Nat.   Bank   v.   Bangs, 

1.54,   1.5.5.   105. 
.Merchants'     A:     .Minhanli's'     Sav. 
Bank  v.  Fraze.  '257. 

V.  IIoldrcdKe,  48.  49. 
Meredith  v.  Mei;rh.  88.  89. 
Merriani  v.  Ctmninjrham,  19.  20. 

V.  Field.  '237.  2(M).  '2(;7. 

V.  Lumber  Co.,  182. 

V.  Wolcott,  3G2. 
Merrick  v.  Wilt.se,  308.  377. 
Merrick's  E.state.  In  re.  58. 
Merrill  v.  Meaclnun,  20.3. 

V.  Niphtinsale,  '257. 
Merrill  Furniture  Co.  v.  Hill.  132. 
Merriman  v.  Cliapraan,  204. 

V.  Machine  Co.,  355. 
:\rerritt  v.  Cj.ison.  110.  Ill,  115. 

V.  Robinson,  182. 
Merry  v.  Green,  58. 
Mer.sey  Steel  &   Iron  Co.  v.  Nay- 

lor,  288.  289.  290. 
Mershon  v.  '\"\nieeler.  172. 
.Merwln  V.   Arbnckle.   183. 
.Messer  v.  WiMxlman.  149. 
Messmore  v.  Lead  Co..  3t)0. 
.Metropolitan  Nat.  Bank  v.  Bene- 
dict Co.,  10. 
Mews  V.  Carr.  114. 
Meyer  v.  Amidon.  182. 

V.  Ricliards.  302. 

V.  Tliom|)son,  91. 
Meyers  v.  McAllister.  317, 

V.  Schemp.    79. 
.Meyersteln  v.  Barl>er,  205,  3.10. 
Miamisburs   Twine   &    C.    Co.    V. 

Wohlhuter.  371,  377. 
Mi.iiael  v.  Bacon.  211. 

V.  Curtis,  79. 
Micliaud  V.  Lumber  Co.,  170. 
Mi.-liitran    C.    R.    Co.    v.    rhiilips. 

1'2.".. 
Middlelmry    Colleu'e    v.    Chandler, 

18. 
Middlesex  Co.  v.  Osi,'.H)d.  274,  275. 


472 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Middlesex   Water  Co.   v.  Knapp- 

mann  Whiting  Co.,  308. 
Mighell  V.  Dougherty,  70. 
Mihills  Mfg.  Co.  v.  Day,  358. 
Milburn  Mfg.  Co.  v.  Peak,  10. 
Miles,  Ex  parte,  332. 

V.  Gorton,  313,  321,  325. 
V.  Miller,  354. 
Milgate  v.  Kebble,  342. 
Millard  v.  Webster,  326,  330. 
Mill-Dam  Foundry  v.  Hovey,  228. 
Miller  v.  Amnion,  213,  220. 
V.  Barber,  190. 
V.  Buchanan,  178. 
V.  Hyde,  58. 
V.  Moore,  250. 
V.  Post,  213,  214. 
V.  Race,  28. 
V.  Seaman,  127,  157. 
V.  Smith,  18. 
V.  Stevens,  76. 
V.  Tiffany,  253. 
Miller  Brewing  Co.  v.  De  France, 

225. 
Milliken  v.  Randall,  369. 
V.  Warren,  316,  320. 
Mills  V.  Hunt,  81. 

V.  Williams,  216. 
Milnes  v.  Gery,  60. 
Milwaukee  Boiler  Co.  v.  Duncan, 

258. 
Minnesota  Thresher  Mfg.  Co.  v. 

Hanson,  371. 
Miner  v.  Bradley,  361,  363. 
Ming  V.  Woolfolk,  186. 
Minneapolis  Threshing  Mach.  Co. 

V.  Hutchlngs,  301. 
Minneapolis  &   St.   L.   R.   Co.   v. 

Mill  Co.,  51. 
Minock  v.  Shortridge,  17. 
Mirabita  v.  Bank,  164,  165,   166, 

169,  170,  171. 
Mississippi  River  Logging  Co.  v. 

Miller,  136. 
Mississippi  &  T.  R.  Co.  v.  Green, 

310. 
Missouri  Pac.  R.   Co.  v.  Heiden- 
heimer,  336. 


Mitchell  V.  Baker,  165. 

V.  Gile,  12. 

V.  LeClair,  155,  269,  345. 

V.  Pinckney,  239. 

V.  Smith,  213. 

V.  Winslow,  48. 
Mixer  v.  Howarth,  67. 
Moakes  v.  Nicholson,  168. 
Mobile  Fruit  &  Trading  Co.  v.  Mc- 

Guire,  156,  261,  275,  293. 
Mockbee  v.  Gardner,  245. 
Mody  V.  Gregson,  248,  267. 
Moffit-West  Drug  Co.  v.  Byrd,  359. 
Mohney  v.  Evans,  19,  20. 
Mohr  V.  Miesen,  218, 

V.  Railroad  Co.,  330. 
INIoline-Milburn    Co.    v.    Franklin, 

185. 
Moline  Plow  Co.  v.   Carson,  178. 
Molton  V.  Camroux,  22,  24. 
Moller  V.  Tuska,  188. 
Monarch  Cycle  Mfg.  Co.  v.  Wheel 

Co.,  291. 
Mondel  v.  Steel,  375,  376. 
Monk  V.  Whittenbury,  40. 
Monroe  v.   Hickox,  Mull.  &  Hill 
Co.,  266. 

V.  Hoff,  303. 
Monte  Allegre,  The,  245. 
Montgomery     Furniture     Co.     v. 

Hardaway,  123. 
Montreal  v.  Thayer,  184. 
Montreal  River  Lumber  Co.  v.  Mi- 
hills,  183. 
Moody  V.  Blake,  52,  196. 

V,  Brown,  161,  346. 

V.  Wright,  46,  49. 
Mooney   v.   Davis,    1.S4. 
Moore  v.  Campbell,  108,  117. 

V.  Hershey,  22. 

V.  Kendall,  221. 

V.  Roger,  241,  259. 

V.  Love,  84. 

V.  McKinlay,  253. 

V.  Mountcasile,  101. 

V.  Potter,  340,  343. 

V.  U.  S.,  286. 


CASES    CITED. 
[The  flKures  refer  to  pages.  1 


473 


Moors  V.  Drury,  37,  172. 

V.  Kidder,  11.43,  1(i7.  171,  17L>. 

V.  Wynmn,  171,  172. 
Morehouse  v.  Comstock,  237,  371, 

375. 
Morey  v.  Medlmry.  12-1. 
Morgan   v.   Baiii,  3US. 

V.  Dod,  10. 

V.  Gatli.   284. 

V.  Klddor.   141. 
Mori  son  v.  (J  ray,  324. 
Morlcy  v.  Attonborough,  243,  244, 

2r.3. 
Morrill  V.  Blaokiuan,  180. 

V.  Noyes,  49. 
Morris  v.  Supplee,  356. 

V.  Taleott,   185. 

V.  Telejiraph  Co.,  218. 

v.  Thompson ,    175,    244. 

V.  Wibaux,  2SC. 

V.  Winn,  127. 
Morrison  v.  Dingley,  149. 

V.  Koch,  17G. 

V.  Woodley,  149. 
Morrissey  v.  Broomal,  218. 
Morritt,  In  re,  10. 
Morrow  v.  Reed,  127,  129. 
Morse  v.  Braekett,  191,  364. 

V.  Ely,  15. 

V.  Moore,  251,  371,  372. 

V.  Shaw,  178. 

V.  Sherman,  123,  345. 

V.  Stockyard    Ck).,    250,    258, 
372. 
Mortimer  v.  McCallan,  49. 
Morton  v.  Dean,  71,  109,  114. 

V.  Lamb.  2(K). 

V.  Tibbett,  87,  89,  92. 
Mosby  V.  Goff,  139. 
Moses  V.  Mead,  202. 

V.  Rasin,  325,  355. 
Moss  V.  Sweet,  145,  146. 
Mottram  v.  Heyer,  337. 
Moulton  V.  Mfg.  Co.,  361. 
Moultrie  Repair  Co.  v.  nill.  266. 
Mount  Hope  Iron  Co.  v.  Bufflnton, 
127. 


Mowbray  v.   C.-idy,    144. 
-Mowry  V.  Kirl<.  27S. 
Mottram  v.  Ilt-yer,  P,^7. 
.Mncklow  V.  Man;,'!es,  161. 
.Muller  V.  Knn.  'MS. 

V.  I'ondir,  324. 
.Miiiimu'iiford  v.  Randall,  54. 
Munford  v.  Kevll.  374. 
Muiiroe  v.  Warchonso  Co.,  37. 
Munson  v.  Washburn,   18. 
Murch  V.  Wright,  135,  137 
Murchie  v.  Cornell,  2<I0. 
.Murphy  v.  Boose,  113. 

V.  McGraw,  239. 
Murray  v.  Tolman.  177. 
Muskegon  Curtaln-RoU  Co.  v.  Mfg. 

Co.,  351. 
Mutual  Life  Ins.  Co.  v.  Hunt.  23. 
Myer  v.  Wheeler,  2S9. 
Myers  v.  Meiiirath,  221. 

V.  Knabe,  23. 

V.  Smith,  5L 


Xash  V.  Brewster,  149. 
V.  Lull,  362. 
V.  Stevens,  199. 
V.  Towne,   104.  361. 
National  Bank  v.  Dayton,  154. 

V.  KMilroad  Co..  .'rT. 
National  Bank  of  Bristol  v.  Rail- 
read  Co.,  334. 
National    Bank    of  Commerce   v. 
Bank,   170. 
V.  Railroad  Co.,  3.5.  12.-.,  133. 
National    Cash    Register    Co.    v. 
Dehn,   56. 
V.  Petsas.  139. 
National  Coal  Tar  Co.  v.  Gaslight 

Co.,  356. 
National     Commercial     Bank     v. 

Trans[)ortation  Co.,  34. 
National    Contracting   Co.   v.    Ce- 

nient  Co.,  290. 
National  Cotton  Co.  v.  Tounp.  2.55. 


474 


CASES   CITED. 
[The  figures  refer  to  pages.] 


National  Mach.  &  T.  Co.  v.  Ma- 
chine Co.,  290. 
National  Oil  Co.  v.  Rankin,  255. 
National    School    Furnishing    Co. 

V.  Cole,  11. 
Nattin  v.  Riley,  139. 
Nauman  v.  Ullman,  237. 
Navassa  Guano  Co.  v.  Guauo  Co., 

286. 
Navulshaw  v.  Brownrigg,  42. 
Neal  V.  Boggan,  345. 

V.  Flint,   237. 

V.  Hardware  Co.,  3.59. 

V.  Williams,  203. 
Neblett  v.   Macfarland,   192. 
Neff  V.  McNeeley,  374. 
Negley  v.  Jeffers,  108. 
Neidefer  v.  Chastain,  362. 
Neimeyer  Lumber  Co.  v.  Railroad 

Co.,  37,  156,  157,  324. 
Neis  V.  O'Brien,  343. 
Neldon  v.  Smith,  235. 
Nellia  v.  Clark,  203. 
Nelson  v.  Brown,  8. 

V.  Duncombe,  24. 

V.  Martin,  178. 

V.  Overman,  295. 

V.  Rail   Co.,   350. 
Nesbit  V.  Burry,  128. 
Nettleton  v.  Beach,  182. 

V.  Sikes,   74. 
Nevels  v.  Lumber  Co.,  245. 
Nevill,  In  re,  11. 
Newberry  v.  Railroad  Co.,  52. 

V.  Wall,   115. 
Newcomb  v.  Bamer,  77. 

V.  Brackett,  .307. 

V.  Railroad  Co.,  165. 
Newell  V.  Canning  Co.,  283. 

V.  Radford,  103. 

V.  Randall,  170. 
New    England    Dressed    Meat    & 
Wood  Co.  V.  Worsted  Co.,  106, 
112,  149,  159. 
New   England    Iron   Co.   v.   Rail- 
road Co.,  345. 


New  England  Trust  Co.  v.  Abbott, 

60,  233,  361. 
Xewhall  v.  Kingsbury,  1.3-S. 

V.  Langdon,  149. 

V.  Railroad  Co.,  334. 

V.  Vargas,  324,  328,  337,  338. 
New    Hampshire   Mut.    Fire   Ins. 

Co.  V.  Noyes,  17. 
New  Haven  Wire  Co.,  In  re,  172. 
New  Home  Sewing-Mach.   Co.  v. 

Bothane,  139. 
Newman  v.  Morris,  64. 
Xewson  v.  Thornton,  325. 
New  V.  Swain,  315. 
Xewton  V.  Bronson,  109. 

V.  Fay,  9. 
New  York  Security  &  Trust  Co.  v. 

Lipman,  42. 
New  York  Tartar  Co.  v.  French, 

293. 
Nibert  v.  Baghurst,  215. 
Xichol  V.  Godts,  248. 
Xicholls  V.  McShane,  185. 
Xichols  V.  Ashton,  134,  136,  138. 

V.  Bancroft,  199. 

V.  Johnson,   103. 

V.  Michael,  191. 
Xicholson  v.  Bower,  87. 

V.  Bradfield  Union,  283. 

V.  Taylor,  128. 

V.  Wilborn,  19,  20,  21. 
Xickerson  v.  Darrow,  41. 
Xickoll  V.  Ashton,  310,  355. 
Xiell  V.  Morley,  22. 
Xiemeyer  v.  Wright,  213,  214. 
Xightingale  v.  Ei&eman,  285. 
Xiinrod,  The,  259. 
Xixa  Canning  Co.  v.  Grocer  Co., 

265. 
Xixon  V.  Brown,  32. 
Xoah  V.  Pierce,  123. 
Xoakes  v.  Morey,  98. 
Xoble  V.  Bosworth,  78. 

V.  Smith,  12. 

V.  Ward,  108. 
Noel  V.  ISIurray,  303. 

V.  Wheatly,  246. 


CASKS 

[The  figures 

Norfolk  S.  R.  Co.  v.  Barnes,  15S. 
Norfolk    &    New    Bruuswiok    II«)- 

slory  Co.  v.  Arnold,  180. 
Nonuan  v.  Phillips,  89,  91. 
Norrington    v.    Wriplit,    'J.')0,    27S. 

282,  2SG.  287,  2SS.  280,  2<J0,  307. 
Norris  v.  Blair,  100. 

V.  Harris.  oiJo. 
North  V.  Forest.  73. 
V.  Mallory,  .".()."». 
V.  Mendel.  10!». 
Northern    Cent.    R.    Co.    v.    Wal- 
worth, 3G1. 
Northern  Pac.  Lumbering  Co.  v. 

Kerron,  120,  127. 
Northern  Supply  Co.  v.  Wangard. 

375. 
Northern    Trust    Co.    v.    Markoll, 

361. 
Northington-Munger-Pratt   Co.    v. 

Warehouse  Co.,  50. 
North  Pac.  Lumbering  &  Mfg.  Co. 

V.  Kerron,  120. 
North    Pennsylvania    R.    Co.    v. 

Bank,  33. 
Northrup  v.  Cook,  88. 
V.  Foot,  21.5,  220. 
Northwestern  Cordage  Co.  v.  Rice, 

2.-;0,  371,  373. 
Northwestern  Lumber  Co.  v.  Cal- 
endar, 239. 
Northwestern  Mut.  Fire  Ins.  Co. 

V.  Blankenship,  23. 
Norton  v.  Davison,  99. 
V.  Dreyfusp.  37-1. 
V.  Gale.  105. 
V.  Meliek.  10. 
Norwegian  Plow  Co.  v.  Clark,  11. 

V.  Hanthorn.    00. 
Nottingham    Coal    &    Ice    Co.    v. 

Preas,  356. 
Nutter  V.  Wheeler,  11. 
Nutting  V.  Nutting.  l.^<?. 
Nye  V.  Alcohol  Works,  371. 
V.  Daniels,  138. 


CITKD, 
refer  to  pages.] 


47: 


Oakos  V.  Merrilit'Id,  224. 
Oakland   Sugar   Mill   Co.  v.   Fred 

W.  Wolf  Co.,  371. 
ObprdorftT  v.  Meyer,  lOL 
Obor  V.  Smith,  50. 
O'Brien  v.  Jones.  247. 

V.  Norris,  320. 
O'Bryan  v.  Fitzpatrick,  215. 
O'Connor's  Adm'x  v.  Clark,  32. 
Odell  V.  Leyda,  8. 

V.  Railroad  Co.,  129,  155. 
Odessa  Tramways  Co.  v.  Mendel, 

O'Donnell  v.  L<^eman,  106,  109. 

V.  Sweeney,  220. 

V.  Wing  &  Son,  144. 
O'Donnell  &  Duer  Browing  Co.  v. 

Farrar,  176. 
O'Farrel  v.  McClure,  120. 
( )'Gara  v.  Ellsworth,  .3.".4. 
(Jgg  V.  Shuter,  158,  164,  105,  109. 
Ogle  V.  Atkinson,   105. 

V.  Earl  Vane,  355. 
Oglesby   Grocer  Co.  v.   Mfg.  Co.. 

103. 
O'llerron  v.  Gray,  31. 
O'Keofe  v.  Leistikow,  149. 
Olcese  V.  Fruit  &  Trading  Co.,  34.'.. 
(Hcott  V.  Bolton,  1&3.  180. 
Old  Colony  R.  Corp.  v.  Evans,  110. 
Oliver  V.   Hunting,   110. 

V.  Oliver,   175. 
olllvant  V.  Bayley.  .55,  2."8. 
Olmstead  v.  Nilos,  75. 
Olson  V.  Sharpless,  109,  3.'4. 
Olyphant  v.  Baker,  123. 
Omaha  Coal,  Coke  &  Lime  Co.  v. 

Fay.  2.58. 
(^'Neil  V.  Craln.  105. 

V.  Garrett.  333. 

V.  Mining  Co..  69. 

V.  Vermont,   157. 
Oppenheim  v.  Russell,  .'^27. 
Orcutt  V.  Nelsnu.  212,  225. 

V.  Rickenhrodf.    140, 


476 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Oriental  Bank  v.  Haskins,  203. 
Orman  v.  Hager,  69. 
Ormond  v.  Henderson,  283. 
Ormrod  v.  Huth,  182. 
Ormsby  v.  Budd,  239. 
O'Rourke  v.  Hadcock,  139. 
Osborn  v.  Lumber  Co.,  142. 

V.  Nicholson,  242. 
Osborne  v.  Moss,  203. 
Osgood  V.  Lewis,  240,  250. 

V.  Skinner,  347. 
Osterhout  v.  Roberts,  58. 
Oswego  Starch  Factory  v.  Lend- 

rum,  179,  194. 
Otis  V.  Cullum,  362. 
Ott  y.  Sweatman,  137. 
Owens  V.  Lewis,  74,  75. 

V.  Sturges,  368. 

V.  Weedman,  313,  315. 
Oxendale  v.  Wetherell,  57,  284. 


Pacific  Iron   Works  v.   Railroad 

Co.,  155. 
Pacific  Lounge  &  Mattress  Co.  v. 

Rudebeck,  120. 
Packard  v.  Dunsmore,  207,  272. 

V.  Richardson,  104. 
Paddock  v.  Strobridge,  175. 
Paddon  v.  Taylor,  194. 
Page  V.  Carpenter,  150. 

V.  Cowasjee  Eduljee,  339,  342. 

V.  Morgan,  90. 
Pagley  v,  Fiudlay,  343. 
Paine  v.  Cave,  51. 

V.  Sherwood,  357,  358. 
Palmer  v.  Banfield,  M5. 

V.  Hand,  124,  320. 

V.  Howard,  135. 

V.  Stephens,  111. 
Pancake  v.  George  Campbell  Co., 

300. 
Pangborn  v.  Westlake,  213. 
Pardee  v.  Kanaday,  307,  308,  345. 
Park  V.  Darling,  30. 

V.  Richardson  &  Boynton  Co., 
377. 


Parker  v.  Baxter,  132,  193. 

V.  Byrnes,  179,  315,  319. 

V.  Marco,  22. 

V.  Marvell,  201. 

V.  Palmer,  263,  298. 

V.  Parker,  102. 

V.  Pettit,  307. 

V.  Russell,  307. 

V.  Schenck,  OS. 

V.  Staniland,   74. 

V.  Wallis,  87. 
Parkinson  v.  Lee,  255,  265. 
Parks  V.  Hall,  315,  321. 

V.  Tool  Co.,  375,  378. 
Parman  v.  Marshall,  128. 
Parmlee  v.  Adolph,  1-82,  183,  197. 
Parry  v.  Libbey,  207. 
Parry  Mfg.  Co.  v.  Tobin,  369,  375. 
Parshall  v.  Eggart,  10. 
Parsons  v.   Loucks,  68. 

V.  Sutton,  356,  358. 

V.  Webb,  28. 
Parsons  Band-Cutter  &  Self-Feed- 
er Co.  V.  Mallinger,  266,  267. 
Parton  v.  Crofts,  101,  117. 
Pasley  v.  Freeman,  187,  240,  243. 
Passenger  v.  Thorburn,  379. 
Paterson  v.  Task,  38. 
Pateshall  v.  Tranter,  371. 
Pattee  v.  Greely,  215. 
Patten  v.  Glatz,  178. 

V.  Thompson,  325. 
Patten's  Appeal,  338. 
Pattison  v.  Culton,  336. 
Pattison's  Appeal,  76. 
Patton  V.  Gardiner,  59. 
Paul  V.  Dod,  345. 

V.  Hadley,  175. 

V.  Kenosha,  362. 

V.  Reed,  122,  124,  125,  132. 
Pawelski  v.  Hargreaves,  69 
Payne  v.  Rodden,  246. 

V.  Whale,  368. 
P.  Cox  Shoe  Mfg.  V.  Adams,  184, 

185. 
Peabody  v,  McGuire,  133. 

V.  Maguire,  125,  132. 


CASES    CITED. 
(The  flguroB  refer  to  paces. 1 


477 


Peabody  v.  Speycrs,  72,  73,  101. 
Poace    River    Pliosplmte    Co.    v. 
Bradstreot.  3."i8. 
V.  Graffln,  2S8.  35.8. 
Penrce  v.  Brooks.  210. 

V.  Gardner,  110. 
Pc.Trson  V.  Dawson,  320. 
Pease  Car  &   Locomotive  Works, 

In  re,  206. 
Pease  v.  Gloahec,  101. 
Peck  V.  Jcuisou,   177. 
Peck   &   Co.   V.    Corrugating   Co., 

351. 
Peek  V.  Gurney,  17G.  183,  184. 
Peer  v.  Humphrey,  27. 
Peerless  Glass  Co.  v.  Tinware  Co., 

54. 
Peltier  v.  Collins,  107,  115. 
Pemberton  v.  Dean,  238. 
Pembroke    Iron    Co.    v.    Parsons, 

2SG. 
Ponce  V.  Langdon,  180,  107. 
PeuJiallow  V.  Dwigbt,  77. 
Penley  v.  Bcssoy,  127. 
Penn  v.  Boruman,  214,  220. 

V.  Smith,  340. 
Penniman  v.  Hartshorn,  112. 
Pennington  v.  Ilowland,  234. 
Peunock  v.  Coe,  48. 
Pennsylvania   Co.   v.    Holderman, 

201. 
Pennsylvania  R.  Co.  v.  Oil  Works, 

327,  338. 
Pennypacker  v.  Umberger,  302. 
People's  Bank  v.  Bopart,  175. 
People's  Furniture  &  Carpet  Co. 

V.  Crosby,  130. 
People's  Ice  Co.  v.  The  Excelsior, 

80. 
People  V.  Sup'rs,  181. 
Peoria  Grape  Sugar  Co.  v.  Bab- 
cock  Co..  103,  105. 
V.  Turney,  2.j8. 
Peoria  Mfg.  Co.  v.  Lyons,  11. 
Perkins  v.  Bell,  208. 
V.  Grobben,  140. 
V.  Whelan,  24G. 


Perley  v.  Balch,  ISO,  370. 
Pcrliiian  v.  Sartorlus,  276. 
Perrin  v.  Reed,  201. 

V.  Wilson,   10. 
Perrine  v.  Barnard,  317,  320. 
Perry  v.  Bank,  172. 
V.  Iron  Co.,  2S2. 
V.  Pearson,  197. 
Persse,  In  re,  24. 
Petch  V.  Tutln,  47. 
Peters  v.  Cooper,  349. 
V.  Elliott,  170. 
V.  FhMiiinL',  17,  18,  20. 
V.  Grim,    222. 
Peters  I'.n.x  &  Lumber  Co.  v.  Lesli, 

53,    1!>(!. 
Petersen  v.  Lumber  Co.,  3G1. 
Pettigrew  v.  Chollis.  182. 
I'ettitt  V.  Mitchell,  295. 
Phelps  V.  Comber,  337. 

V.  Ilubliard.  2t;0,  274.  340. 
v.  Slilliuf,'s,  105. 
V.  Worcester,  18. 
Phelps,   Dodge   &   Palmer   Co.   v. 

Samson,  195. 
Phenix    Iron    Works    Co.    v.    Mc- 

Evony,  102,   103,  195. 
Phifer  v.  Erwin,  59,  00. 
Philadelphia  Whiting  Co.  v.  White 

Lead  Works.  25r>. 
Philadelphia,   W.  &   B.   R.   Co.   v. 

Woelpper,  40. 
Philadelphia    &    R.    Ry.    v.    Wire- 
man,    150,   105. 
Philhrook  v.  Eaton,  .304. 
Philips  V.  Reitz.  201. 
Phillips  V.  Bistolll,  54,  91,  92,  94. 
V.  Until,  39. 
V.  Lloyd,  18. 
V.  Mills,  8«<.  102,  149. 
V.  Moor.  123. 
Phillpotts  V.  Evans,  35<J. 
Philpot  V.  Mfg.  Co.,  17. 
Phippen  V.  Hyland,  110. 
Phlpps  V.  Buckman,  ISO. 

V.  McFarlano,  70. 
Picnnl  V.  Mc-(M)rmI(k.  12.  177. 


478 


CASES  CITED. 
[The  figures  refer  to  pages.l 


Pickard  v.   Sears,  30. 
Pickering  v.  Bardwell.  340. 
V.  Busk,   32. 
V.  Railroad  Co.,  224. 
Pickett  V.  Bullock,  314. 

V.  Cloud,  123. 
Pierce  v.  Cooley,  144. 
V.  Corf,  109,  115. 
V.  Wilson,  190. 
Pierson  v.  Crooks,  294,  295,  296, 

374. 
Pike  V.  Balcb,  71,  114. 

V.  King,  220. 
Pike  Electric  Co.  v.  Drug  Co.,  70. 
Pilgreen  v.  State,  156,  158. 
Pinney  v.  Railroad  Co.,  2T7. 
Pitkin  V.  Noyes,  69. 
Pitney  v.  Insurance  Co.,  99. 
Pitts  V.  Beckett,  106,  107. 
Pittsburgh,  C.  &  St.  L.  R.  Co.  v. 

Heck,  350. 
Pittsburgh  Plate  Glass  Co.  v.  Ker- 

lin  Bros.  Co.,  2&4. 
Pitts'  Sons  Mfg.  Co.  v.  Poor,  144. 
Pixley  V.  Boynton,  219. 
P.  J.  Bowlin  Liquor  Co.  v.  Beau- 

doin,  156. 
Plaisted  v.  Palmer,  217,  221. 
Piatt  V.  Brand,  306. 
Playford  v.  Mercer,  280. 
Pleasants  v.  Pendleton,  149,  150. 
Plunkett  V.  Plunkett,  208. 
Plymouth   Stove   Foundry   Co.   v. 

Fee,  137. 
Poland  V.  Brownell,  177,  187. 
Polenghi  v.  Milk  Co.,  265. 
Polhemus    v.    Heiman,    284,    305, 

37i,  375. 
Polhill  V.  Walter,  183. 
Pollard  V.  Reardon,  37. 
Pollen  V.  Le  Roy,  341. 
Ponder  v.  Cotton  Co.,  218. 
Poole  V.  Railroad  Co.,  330. 
Poor  V.  Woodburn,  194. 
Pope  V.  Allis,  230,  250,  251,  264, 
294,  300,  367. 
V.  Mfg.  Co.,  277. 


Pope  V.  Porter,  288. 

Poplett  V.  Stockdale,  209. 

Port  Carbon  Iron  Co.  v.  Groves, 

258. 
Porter  v.  Bridgers,  142. 

v.  Bright,  245. 

V.  Pool,  237,  377. 

V.  Rose,  269. 
Portland    Flouring    Mills    Co.    T. 

Insurance  Co.,  169. 
Posey  V.  Scales,  269,  278. 
Post  V.  Corbin,  49. 
Potomac  Bottling  Works  v.  Bar- 
ber &  Co.,  354. 
Potsdamer  v.  Kruse,  363. 
Potter  V.  Easton,  237. 

V.  Lee,  299. 

V.  Mill  Co.,  7. 

V.  Taggart,  190. 
Potts  V.  Bell,  212. 

V.  Railroad  Co.,  321,  326. 

V.  Whitehead,  51. 
PoultOn  V.  Lattimore,  371. 
Powder  River  Live  Stock  Co.  v. 

Lamb,  84. 
Powell  V.  Bradlee,  179. 

v.  McAsham,  79. 
Powder  V.  Barham,  239,  240,  241. 
Powers  V.  Benedict,  190. 

V.  Bellinger,   123. 
Prairie  Farmer  Co.  v.  Taylor,  144. 
Prater  v.  Campbell,  76. 
Pratt  V.  Mfg.  Co.,  341,  347,  350. 

V.  Miller,  70. 

V.  Parkman,  207. 

V.  Peck,  161. 

V.  Pbilbrook,  190. 
Pray  v.  Burbank.  213.  214. 

V.  Mitchell.    72,   73. 
Prelst  V.  Last,  256. 
Prentice  Co.  v.  Page,  41. 
Prentice  v.  Fargo,  255. 
Prescott  V.  Locke,  69. 
Presnahan  v.  Nugent,  199. 
Preston   v.   Crofut,  203. 

V.  Foel linger,  52. 

V.  Smith,  60. 


Price  V.  Enselke.  2«3. 

V.  Furiiuui,  15. 

V.  Insurance  Co.,  36.  42. 

V.  Sanders,  19. 
Prlthett  V.  Cook,  7. 
Prldoaux  v.  Bunnett.  55. 
Priiue  V.  Cobb.  28. 
Pritcbctt  V.  JoiH's,  127. 
Proctor  V.  Jones,  80. 

V.  Sears,  17. 

V.  Tiltou,  139. 
Provldente  Coal  Co.  v.  Coxc.  2S(>. 
Prussia,  The,  IGO. 
Puckett  V.  Reed,  273. 
Puget  Sound  Mach.  Depot  v.  Rig- 
by,  69. 
Pullock  V.  Tscbergi,  94. 
Puritan   Coke  Co.   v.   Clark,  34G. 

348. 
Puritan  Mfg.  Co.  v.   Westerniiro. 

251. 
Punier  v.  Piercy,  76,  78. 
Putnam  v.  Glldden,  301,  313,  343. 
Putnej'  V.  Day,  75. 
Pyne  v.  Wood.  18. 


Queen  City  Glass  Co.  v.  Clay  Pot 

Co.,  257. 
Quinn  v.  Machinery  Co.,  135. 
Quintard  v.  Racon.  88. 
Quls  V.  Halloran,  239. 


Raffles  V.  Wicholhaus,  53. 

Ragsdale  v.  Sliipp,  239,  241. 

Rahilly  v.  Wilson.  7. 

Rahter  v.  Bank.  214. 

Rail  V.  Lumber  Co..  123,  127. 

Ralnsford  v.  Fen  wick,  19. 

Rainwater  v.  Durham,  19. 

Rand  v.  Mather.  224. 

Randall  v.  Newson,  257,  259,  205. 

V.  Rnper,  379. 

V.  Rhodes,  237. 
Randle  v.  Stone  &  Co.,  142. 


CA.SK.S    I  ITKD.  479 

rni«  flgurei  refer  to  pagca.] 

Randolph  Iron  Co.  v.  Elliott,  B2. 
Randuu  v.  Tobj-,  22U. 
Itannoy  v.  Iligby.  156. 
Raphael  v.  lUirt,  243. 
Rai)pleye  v.  Adeo,  86.  96. 

V.  Seeder  Co.,  308. 
Itastctter  v.  Roynold-s,  347. 
Ratzer  v.  Railroad  Co.,  35. 
Rawlins  v.  Wlckham.  188. 
Raw.son  v.  llarger.  182. 

V.  Johnson.  269. 
Ray  V.  Light,  50. 

V.  Thompson,   145,  140. 
Read  v.  Hutchinson,  12. 
Reager  v.  Kendall,  179. 
Redgrave  v.  llurd,  1S(J. 
Redhead  Bros.  v.  Investment  Co., 

347. 
Redlands    Orange-Growers'    Ass'n 

V.  Gorman,  278.  300. 
Redmond  v.  Smock,  341. 
Itedus  V.  Holcomb,  100. 
Reed  v.  Brewer,  211. 

V.  Jewett.  204. 

V.  Randall,  374. 

V.  Reed.  205. 
Reeder  v.  Machen,  149,  1.53. 
Reese    River    Silver    Min.    Co.    T. 

Smith,  182,  190. 
Reeve  v.  Dennett,  187. 
Reeves  v.  Sebern,  9. 
Reeves  &  Co.  v.  Byers.  2<W. 
Reggio  V.  Bragglottl,  377. 
Keherd's  Adm"r   v.  Clem.  8. 
Keld  V.  Glass  Co..  105,  108. 

V.  Kentworthy,  lOiI. 

V.  Lloyd,  181. 

V.  MacBeth.  161. 
Reld,  Murdoch  &  Co.  v.  Bird,  195. 

V.  Kempe,  ISl. 
Reniick  v.  Sandford,  92,  107,  115. 
Rentch  v.  I-ong,  69. 
Renz,  In  re,  24. 
Re.stad  v.  Engemoen,  12<5. 
Reuss  V.  Picksley,  105,  111. 
Renter  v.  Sala,  283. 
Reybold  v.  Voorhees,  289. 


480 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Rejmell  r.  Sprye,  223. 

Reynolds  t.  Electric  Co.,  259,  266. 

V.  Miller,  59. 

V.  Palmer,  372. 

V.  Railroad,  325,  326,  337. 

V.  Stevenson,  216. 
Rheinstrom  v.  Steiner,  300. 
Rhind  v.  Freedley,  259. 
Rhoades  v.  Castner,  109. 
Rhodes,  In  re,  14,  24. 

V.  Mooney,  319. 
Rice  V.  Butler,  16. 

V.  Churchill,  275. 

V.  Codnian,  240. 

V.  Forsyth,  255. 

V.  Mfg.  Co.,  45. 

V.  Nixon,  7. 

V.  Stone,  46. 
Richards  v.  Schreiber,  Conchar  & 
Westphal  Co.,  140. 

V.  Shaw,  57,  284. 
Richardson  v.  Cooper,  lOS. 

V.  Dunn,  57. 

V.  Goddard,   215. 

V.  Grandy,  371. 

V.  Insurance  Co.,  123. 

V.  Olmstead,  8. 

V.  Strong,  24. 
Richardson  Drug  Co.  v.  Teasdall, 

139. 
Richmond  v.  Moore,  215,  216. 
Richter  v.  Stock  Co.,  361. 
Rickard  v.  Moore,  90. 
Rickey  v.  Tenbroeck,  84,  340. 
Riddle  V.  Keller,  217. 

V.  Varnum,  128,  129. 
Rider  V.  Kelley,  161. 
Ridgeway  v.  Herbert,  15. 
Ridgley  v.  Mooney,  341,  349. 
Ridgway  v.  Ingram,  109. 

V.  Wharton,  109. 
Riford  V.  Montgomery,  28. 
Riggan  v.  Green,  23. 
Riggs  V.  Magruder,  72. 
Rightor  V.  Roller,  182. 
Riley  V.  Bank,  10. 

V.  Farnsworth,   106. 


Riley  v.  Mallory,  15,  16. 

V.  Water-Power  Co.,  28. 

V.  Wheeler,  123,  125. 
Rindskopf  v.  Myers,  199. 
Rinehart  v.  Olwine,  345. 
Ripley  v.  Chase,  178. 
Ritchie  v.  Smith,  214. 
Rivers  v.  Gregg,  20. 
Roalswick,  In  re,  185. 
Robbins  v.  Clark,  233. 
Roberts  v.  Anderson,  203. 

V.  Applegate,  240. 

V.  Beatty,  284. 

V.  Benjamin,   355. 
Robertson  v.  Vaughn,  68. 
Robeson  v.  French,  220. 
Robinson  v.  Fairbanks,  145,  146. 

V.  Green,  SI. 

V.  Harvey,  239. 

V.  Hoskins,  17. 

V.  Hyer,  360. 

V.  Levi,   181. 

V.  MacDonnell,  47. 

V.  Morgan,  315,  321. 

V.  Weeks,  15. 

V.  Weller,  51. 
Robison  v.  Tyson,  269. 
Robson  V.  Bohn,  289,  290. 
Roby  V.  West,  220,  225. 
Rochester  Distilling  Co.  v.  Raeey, 

48. 
Rochester  &  O.  Oil  Co.  v.  Hughey, 

160. 
Rockford  R.  I.  &  St.  L.  R.  Co.  v. 

Lent,  283. 
Rock  Island  Plow  Co.  v.  Meredith, 

298. 
Rodger  v.   Comptoir  d'Escompte, 

335. 
Rodgers  v.  Bachman,  136. 

V.  Jones,  94,  95. 

V.  Niles,  259,  260. 

V.  Phillips,  88. 
Rodliff  V.  Dallinger,  53,  196. 
Rodman  v.  Thalheimer,  179. 
Rodwell  V.  Phillips,  75. 


V. 
V. 
V. 

Rydor 

V. 


CASKS    CITKD. 
[The  figures  refer  to  pages.] 

Rnebllnp's  Sons'  Co.  v.  Fence  Co., 

.■!4^l.   3ol. 
Kot'hl  V.  Ilauinosser,  113. 
Roflim  V.  Ilorst,  300,  351. 
Rogers  v.  Burr,  73. 
V.  Dutton,   im. 
V.  Hanson,  3(it). 
V.  Tlionms,  320. 
V.  Wliitolionse.   135. 
V.  Woodrnff,  230. 
Rohde  V.  Tliwaltes,  153. 
Roland  v.  Gundy,  20, 
Rollins  Engine  Co.  v.  Forge  Co., 

237.  200. 
Ronunoi  v.  Wingate,  159,  282. 
Rondeau  v.  Wyatt.  03,  05. 
Roosevelt  v.  Nusbaum,  11. 
Roots  V.  Dormer,  SI. 
Roper  V.  Jobnson,  30(j,  355. 
Ropes  V.  Lane,  140. 
Roscorla  v.  Thomas,  2.37. 
Rosemau  v.  Canovau,  170. 
Rosenbaums  v.  Weeden,  340. 
Roscnfleld  v.   Swouson,  374. 
Rosenthal  v.  Kahu.  128,  120. 
Rosevear    China     Clay     Co.,     Ex 

parte,  328,  331. 
Ross-Meehan    Brake-Shoe    Co.    v. 

Ice  Co.,  138. 
Ross  V.  Welch,  78. 
Roth  V.  Palmer,  188. 
V.  Taysen,  351. 
Roughan  v.  Block  Co.,  378. 
Routledge  v.  Grant,  51. 
Rovcgno  V.  DclTorari,  54. 
Rowan  v.  Mfg.  Co.,  47. 
RoNve  V.  Osborne.  117. 

V.  Sharp,  8,  137. 
Rowley  v.  Bigelow,  104,  324,  327, 
329,  332,  338. 
V.  Rice,  47. 
Rubin    V.    Sturtevant,    303,    fiC5, 

300.  307. 
Rucker  v.  Donovan,  320,  337,  338. 
Rucknian  v.  Borgholz.  214. 
Ruff  V.  Jarrett,  185,  370. 
Rugg  v.  Minett,  81,  120.  309. 
Tiff.Sales(2dEd.)— 31 


481 


Ru-g  V.  Moore,  2S8,  290. 
Riuiipf  V.  Barto,  31. 
Rui.icy  V.  Daggett,  W. 
Rusk  V.  Fonton.  2.3. 
Russell  V.  Carrington.  149. 

V.  O'Brien,  207. 

V.  Tost.  212. 

V.  Railroad  Co.,  70. 
Riitan  V.  Ludlam,  377. 
RulliraufT  v.  llageninK',  0. 
Ryan  v.  Railroad  Co.,  35. 


Smith,  10. 
U.  S.,  109. 
Wayson.    141. 
V.  Neilire.  2i;2. 
Wombwell,  17,   18,  20. 


SafTord,  Ex  parte,  80,  87,  94,  05. 
V.  (J rout,   185. 
V.  McDonougli,  94,  9.'5. 

Sage   V.    Lumber   Co.,   43. 

Sainsbury  v.  Maltliews,  74. 

St.  Louis  Fair  Ass'n  v.  Carmody, 
211. 

St.  Paul  Harvester  Co.  v.  Nlcolin, 
10. 

St.    Paul   Roller  Mill   Co.  v.   Dis- 
patch Co.,  3.35. 

St.  Paul  &  Minneapolis  Trust  Co. 
V.  Howell,  0<>. 

.^^aladin  v.  Mitchell,  340. 

Salaraons  v.  Nissen,  334. 

.'<ale  V.  Darragh,  115. 

Salisbury  v.  Stainer.  2.55. 

Salmon  v.  Boykin,  283. 

Salmon    Falls    Mfg.    Co.    v.    God- 
dard,  103.  100.  100.  111. 

Salomon  v.  Hathaway,  1.30. 
V.  King,  80. 

Salte  V.  Field.  331. 

Salter  v.  Burt,  270. 
V.  Woollams,    274. 

Salt  us  V.  Everett,  2S,  31. 

Sample  v.   Bri<li:fortli.  5.5. 

Saujples  v.  Guyer,  180,  191. 


482 


CASES  CITED, 
[The  fig:ures  refer  to  pages.] 


Sams  V.  Stockton,  18. 

Samuel  Bowman  Distilling  Co.  v. 

Nutt,  225. 
Samuel  M.  Lawder  &  Sons  Co.  v. 

Grocery  Co.,  156,  157. 
Sanborn  v.  Benedict,  350. 

V.  Flagler,  103,   105,  111. 

V.  Shipherd,  269. 
Sanderlin  v.  Trustees,  71. 
Sanders  v.  Jameson,  299. 

V.  Johnson,  216. 

V.  Keber,  136. 

V.  McLean,  33,  272. 
Sandford  v.  Ferry  Co.,  162. 

V.  Handy,  178. 
Sands  v.  Lyon,  279. 

T.  Taylor,  340. 
Sanger  v.  Waterbury,  129. 
Sarbecker  v.  State,  156.  291. 
Sargent  v.  Currier,  244. 

V.  Gile,  8. 

V.  Sturm,  194. 
Sari  V.  Bourdillon,  104. 
Sattler  v.  Hallock,  10. 
Sauerman  v.  Simmons,  240. 
Saunderson  v.  Jackson,  101,  109, 

111. 
Saunders  v.  Short,  284. 

V.  Topp,  83,  86,  94,  298. 
Sawyer  v.  Dean,  294,  340. 

V.  Fisher,  314. 

V.  Lufkin,  24. 

V.  Ware,  71. 
Saxe  V.  Lumber  Co.,  354. 
Sayles  t.  Wellman,  216. 
S.  Blaisdell,  Jr.,  Co.  v.  Bank,  173. 
Scales  V.  Wiley,  71,  79. 
Scammon  v.  Bowers,  49. 
Scarfe  v.  Morgan,  216. 
Scarues  v.  Spencer,  112. 
S.  C.  Forsaith  Mach.  Co.  v.  Men- 
gel,  145. 
Schops  V.  Lehner,  23. 
Scharff  v.  Meyer,  133.  169. 
Schonck  v.  Saunders.  7. 
Scheuer  v.  Goetter,  194. 
Schlesinger  v.  Stratton,  145,  146. 


Schliess  V.  Grand  Rapids,  235. 
Schloss  V.  Feltus,  195. 
Schmertz  v.  Dwyer.  156. 
Schmidt  v.  Thomas,  89,  9L 
Schneider  v.  Norris,  111. 
Schofield  V.  Shiffer,  192. 
Schotsmans  v.  Railroad  Co.,  327, 

328,  338. 
Schramm  v.  O'Connor.  177. 

V.  Sugar-Refining  Co.,  350. 
Schram  v.  Strouse,  185. 
Schreyer  v.  Lumber  Co.,  154. 
Schuchardt  v.  Aliens,  263. 
Schurmeier  v.  English,  376. 
Schutz  V.  Jordan,  57,  58. 
Schuyler  v.  Russ,  241. 
Scofield  T.  Elevator  Co.,  10. 
Scoggin  V.  Slater.  76. 
Scollans  v.  Rollins.  28,  31. 
Scorell  V.  Boxall,  75. 
Scott  V.  England,  345. 

V.  Mfg.  Co.,  241. 

V.  Perrin,  178. 

V.  Railroad  Co.,  64,  85. 

V.  Raymond.  371. 

V.  Wells,    129. 
Scotten  V.  Sutter,  91. 
Scott  Mining  &   Smelting  Co.  v. 

Shultz,  7. 
Scranton  v.  Clark,  244. 
Scrivener  v.  Railroad  Co.,  322. 
Scroggin  v.  Wood.  183. 
Scudder  v.  Bradbury,  123. 

V.  Steamboat  Co.,  161. 

V.  Worster,  149. 
Seanor  v.  McLaughlin,  140. 
Searles  Bros.  v.  Grain  Co.,  172. 
Seath  v.  Moore,  120,  122,  126,  158, 

161. 
Seaver  v.  Dingley,  187. 

V.  Phelps,  22,  23. 
Seavey  v.  Walker,  201. 
Seavy  v.  Potter,  189. 
Sebastian  INIay  Co.  v.  Codd,  12. 
Secomb  v.  Nutt,  326. 
Second  Nat.  Bank  v.  Cummings, 
170. 


CASKS 
[The  figures 

SfM'iirlty    Hiiiik    V.    Lutlp-n,    170 
171. 

V.  Storage  Co.,  .■'.<;. 
Seiluwlck  V.  Cottinglumi,  V2U,  i:;(», 

154. 
Seed  V.  Lord,  125. 
Seeley  v.  Welles,  2.34. 
Seellgsou  v.  Pbillirick,  H'.O. 
St'frrist  V.  Crabtree,  l.",."». 
Seidenbender  v.  diaries,  L'l }. 
Seiple  V,  Irwin,  304. 
Selsel  V.  Wells,  179. 
Seitz  V.  Macbine  Co.,  237. 

V.  Refrigeratlnff    Co.,   2.j8. 
Selxas  V.  Wood,  2ril. 
Selby  V.  Selby.  111. 
Sellers  v.  Stevenson,  255. 
Sen  tell  v.  Mltobell,  57. 
Senter  v.  Mitchell,  48. 
Sewall  V.  Fitch,  GS.  113. 
Sewell  V.  Burdick,  .•j(i,  172. 
Sexton  V.  Anderson.  III!). 
Seymour  v.  Cusbway.  75. 

V.  Newton,  324.  329. 
Shafer  v.  Rus.sell.  141. 
Sbarnian  v.  Brandt,  113. 
Sharp  V.  Carroll,  99. 
Shattuck  V.  Green,  244. 
Sbaul  V.  Harrington,  201. 
Shaw  V.  Ciirpenter,  224. 

V.  Nudd.  .3.">4. 

V.  Railroad  Co.,  33.  35.  36. 

V.  Smith,  GO,  IGl,  2.58. 
Shawhan  v.  Van  Nest,  IGl. 
Shealy  v.  Edwards.  Gl,  129. 
Shearer  v.  Nnrsery  Co.,  377. 
Shearick  v.  Huber,  .30. 
Sheffield  Furnace  Co.  v.  Coke  Co.. 

157. 
Sheffield  v.  Mitchell.  195. 
Sheldon  v.  Capron,  53. 

V.  Cox,  12. 
Sbopard  v.  King,  273. 
Slu'pard  &   Morse  Lumber  Co.  v. 

Burroughs,  334.  335. 
Siiepherd  v.  Gllroy,  237. 

V.  Harrison.  120.  1G5,  169.  170. 


(•ni:i». 

refer  to  pages.] 


4k:i 


Slu'phi'rd   V.   Jenkins,  ;;i;*j. 

V.  Pressey,  8,s,  .s<.(,  91. 
Shepley  v.  Davis,   Us. 
Sbei)pard  v.   Bank.   4<>. 
Sherl)urne  v.  Shaw,  103. 
Sherman  Nursery  Co.  v.  Aughen- 

buagh,  34G. 
Slierry  v.  Picken.  78. 
Sbcrwln  v.  Mudgc.  12S. 
Sherwood  v.  Walker,  5.5. 
Sbewalter  v.  Ford.  241. 
Shields  v.  Pettie,  2.35. 
Sliindler  v.  Houston,  8G,  88,  96,  97. 
Shipnian  v.  Horton,  15. 
Sliipton  V.  Cas.son,  2S4. 
Sliipway  v.  Broadwood,  233. 
Siiiretzkl  v.  Kessler  &  Co.,  240. 
Shirk  V.  Shultz,  15. 
Shufeldt  V.  Pease,  195. 
Shuman  v.  Heator,  2.38. 
Slnuuway  v.  Rutter,  20G. 
Sburtleff  V.  Willard.  204. 
Sievewright  V.  Archibald,  101,  116, 

117. 
Siffken  V.  Wray,  325. 
Siilierman  v.  Munroe.  18.5. 
Sillers  v.  lister,  49. 
Silsl)y  Mfg.  Co.  V.  Chi  CO.  2.34,  235. 
Silsby  v.  Railroad  Co.,  131. 
Simmonds  v.  Humble.  9G. 
Simmons  v.  Green,  2<'i9. 

v.  Swift,  122,  12,3.   128. 
Simon  v.  Metivier,  113. 

V.  Motivos,  71. 

v.  Shoe  Co..  183. 
Simonds  v.  Fisher,  84. 
Simjison  v.  Crippin.  28,8,  289. 

V.   Krunidick,  Si!.  91. 

V.  Ni<-hoIls.   21G. 

V.  Wiggin.  182. 
Sims  V.  Marryat,  243. 
Sinclair  v.  Hathaway.  202. 

V.  Healy,  194. 
Sin;:erly  v.  Thayer.  2.">5. 
Singer  v.  Match  Co..  54. 

V.  Schilling,  194. 


484 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Singer  Mfg.  Co.  v.   Clieney,  347, 
350. 

V.  CJole,  134,  135. 

V.  Draper,  221. 

V.  Ellington,  7,  141. 

v.  Sammons,  194. 

V.  Smith,  135. 
Sinnott  v.  Bank,  180. 
Sisson  V.  Hill,  192. 
Skidmore  v.  Romaine,  24. 
Skiff  V.  Johnson,  211. 
Skinner  v.  Hoop  Co.,  180,  181,  191. 
Slack  V.  Collins,  317. 
Slade  V.  Lee,  142. 
Slagle  &  Co.  V.  Goodnow,  180. 
Slaughter  v.  Gerson,  187. 
Slayton  v.  McDonald,  12. 
Sledge  V.  Scott,  178,  186. 
Sleeper  v.  Chapman,  44. 

V.  Davis,  190,  194. 
Sloane  v.  Shiffer,  192,  193. 
Sloan  V.  Railroad  Co.,  172. 
Slocum  V.  Seymour,  75. 
Smalley  v.  Hamblin,  67. 
Smart  v.  Batchelder,  128,  129. 
Smeed  v.  Foord,  358. 
Smethurst  v.  Woolston,  355. 
Smiley  v.  Barker,  108. 
Smith  V.  Aldrich,  135,  139. 

V.  Arnold,  113,  114. 

V.  Baker,  262. 

V.  Bank,  197. 

V.  Banking  Co.,  306. 

T.  Barber,  140. 

V.  Bean,  221. 

V.  Briggs,  233. 

V.  Bryan,  76. 

V.  Case,  217. 

V.  Chadwick.  185,  186. 

V.  Chance,  274. 

V.  Clews,  32. 

V.  Coe,  263. 

V.  Countryman,  176. 

V.  Cuff,  223. 

V.  Dennie,  132. 

V.  Easton,  115. 

V,  Edwards,  153,  155,  295. 

V.  Fisher,  91. 


Smith  V.  Gillett,  274.  276. 

V.  Goss,  320,  331. 

V.  Gowdy,  51. 

V.  Gufford,  138. 

V.  Hale,  369. 

V.  Howell,  112. 

V.  Hudson,  51,  83,  87,  90. 

V.  Hughes,  56,  175. 

V.  Ide,  104. 

V.  Investment  Co.,  120. 

V.  Jones,  201,  205. 

V.  Jordan,  307. 

V.  Kelley,  17. 

V.  Lewis,  283,  363. 

V.  Lime  Co.,  354. 

V.  Lynes,  132. 

V.  Newton,  183,  186. 

V.  Pettee,  340,  341. 

V.  Railroad  Co.,  68. 

V.  Shell,  106. 

V.  Skeary,  199. 

V.  Smith,  179. 

V.  Sparrow,  216. 

V.  Surman,  66,  74,  91,  110. 

V.  Sweeney,  175. 

V.  Thomas,  358. 

V.  Wheeler,  276,  348. 
Smithurst  v.  Edmunds,  49. 
Smith,    Kline    &    French    Co.    v. 

Smith,  177. 
Smithpeters  v.  Griffin,  18. 
Smith  Premier  Typewriter  Co.  v. 

Stidger,  196. 
Smith's  Adm'r  v.  Smith,  191. 
Smoot's  Case,  306. 
Smyth  V.  Craig,  60. 
Sneathen  v.  Gnibbs,  127. 
Suee  V.  Prescot,  337. 
Snelling  v.  Hall,  254. 
Snider  v.  Thrall,  97. 
Snook  v.  Raglan,  141. 
Suowden  v.  Waterman,  378. 
Snow  V.  Mfg.  Co.,  242. 

V.  Terrett,  274. 
Snydacker  v.  Stubblefield,  8. 
Snyder  v.  Hegan,  198. 

v.  Wolford,  113. 
Soffe  V.  Gallagher,  304. 


CASKS    CITKD. 

[The  flgures  refer  to  pages.] 

S(.lt;ui  V.  Gcrdaii.  43. 
.Sonicrb.v  v.  lUinlin,  4,  73.  3(!0. 
Sopor   Luiiilter   Co.   v.    Ilalstod   & 

Hnriiiount  Co.,  18-1. 
Sortwell  V.  Iliigbes,  211. 
Souhegan  Nat-  Buuk  v.  Wallace, 


485 


Sousely  v.  Burns'  Adui'r,  2G9,  275. 

South  iiustralla  Ins.  Co.  v.  Ran- 
dall, 7. 

South  Baltimore  Co.  v.  Miihlbach. 
79. 

Southern  Cotton  Oil  Co.  v.  ITcnin, 
352. 

Southern  Life  Ins.  &  Trust  Co.  v. 
Cole.  73. 

South  Gardiner  Lumber  Co.  v. 
Bradstreet,  3r)G,  3."S. 

Southwestern  Freiglit  &  Cotton 
Exp.  Co.  V,  Plant.  •.V2\. 

Southwestern  Frei;;lit  &  Cotton 
Press  Co.  v.  Stauard,  123,  313, 
315. 

Spalding  V.  Ruding,  33G. 

Sparlces  v.  Marshall,  153. 

Sparling  v.  Marks,  V.rS. 

Spartali  v.  Benecke,  314. 

Si)aulding  v.  Hanscom,  179. 

Spear  v.  Baoh,  73. 

Spencer  v.  Cone,  G7. 
V.  Hale,  S8.  89. 

Splckler  v.  Marsh,   144.  14G. 

Spoon  V.  Frainltach,  l.'>8. 

Spooner  v.  Baxter,  278. 
V.  Cuniiiiiii;;s,  1.3G. 

Sprague,  Warner  &  Co.  v.  Kempe, 
ISO. 

Springer  v.  Drosch,  2<)3. 

Springfield  Engine  Stop  Co.  v. 
Sharp.  145. 

Stack  V.  Cavenauph,  16. 

Stafford  v.  Roof.  15. 
V.  Walter.  291,  293. 

Standard  Furniture  Co.  v.  Van 
Alstine,  211. 

Standard  Horseshoe  Co.  v.  O'Bri- 
en, 178. 


Standard  Iniiplciiicnt  Cf).  v.  Purlin 

&  OrcndorCr  Co.,   13t;. 
Standard  Steam  Laundry  v.  Dole. 

138. 
Standard     Wall     PaiK-r     Co.     t. 

Towns,  92. 
Stanford  v.  MKjill,  3(H). 
Stange  v.  Wilson,  277. 
Stanley  v.  Coke  Co..  201. 

V.  Gaylord,  2S. 
Stannard  v.  Burns,  24. 
Stanslield  v.  Kunz,  222. 
Stanton  v.  Eager,  3:54,  3.30. 

V.  Small,  49. 

V.  Willson,  20. 
Star  Brewei-y  Co.   v.   Horst,  346. 
Starr  v.  Anderson,  244. 

V.  Bennett,  181. 

V.  Stevenson,  ISO.  191,  195. 
Startup  V.  Cortazzl.  3.55. 

V.  Macdonald,   280. 
State  V.  Carl,  158. 

V.  Cowdery,  8. 

V.  Flanagon,   15.8. 

V.  Goetz.  201. 

V.  Intoxicating   Liquors,    158. 

V.  O'Neil,  157. 

V.  Peters,  1.58. 

V.  Riogcr,  8. 

V.  Stockman,  8. 

V.  Weiss,  21G. 

V.  Wharton,  120. 
Staver  &  Abbott  Mfg.  Co.  v.  Coe, 

1S5. 
Stead  V.  Dawbcr,  107. 
Stearns  v.  Hall.  10*^. 

V.  Washliurn.  315. 
Stoaubll  V.  Bank,  14S. 
Stedman  v.  Gooch,  .303. 
Steel    V.  Fife,  l<i2. 
Stein  V.  Hill.  is<). 
Stephens  v.  C.ifTord,  201. 
Sterling  v.  Baldwin.  75. 
Stevens  v.  Breiuiaii.   104 

V.  Hertzler.  145. 

V.  Kelley,  80. 

V.  Shippen.  1G2. 


486 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Stevens  v.  Wheeler,  330. 

V.  Wilson,  41,  42. 
Stevenson  v.  Burgin,  282. 

V.  Marble,   182. 

V.  McLean,  51. 

V.  Newnham,  194. 

V.  State,  13. 
Stewart  v.  Emerson,  179,  188. 

V.  Ranche  Co.,  175. 

V.  Stearns,  186. 

V.  Stone,  309. 
Still  V,  Cannon,  59. 
Stillwell,    Bierce    &    Smith-Vaile 

Co.  V.  Canning  Co.,  371,  377. 
Stillwell    &    Bierce    Mfg.    Co.    v, 

Phelps,  354. 
Stinson  v.  Clark,  206. 

V.  Ross,  30. 
Stockdale  v.  Dunlop,  119. 
Stoddard  v.  Ham,  196. 
Stokes  V.  Baars.  289. 

V.  Mackay,  306. 
Stollenwerck  v.  Thacher,  41,  165. 
Stone  V.  Browning,  88,  89,  91,  94, 
105,  106. 

V.  Dennison,  21. 

V.  Marsh,  28. 

V.  Peacock,  149. 

V.  Perry,    125,    139. 

V.  Waite,  142. 
Stoolfire  V.  Royse,   269. 
Stoppleman  v.  Paetz,  177. 
Storz  v.   Finklestein,   220. 
Stoutenbourgh  v.  Konkle,  179,  188. 
Stoudenmire  v.   Harper,   56. 
Stoveld  V.  Hughes,  320,  321. 
St.  Paul  Harvester  Co.  v.  Nicolin, 

10. 
St.   Paul   Roller-Mill   Co.    v.   Dis- 
patch Co.,  335. 
St.  Paul  &  Minneapolis  Trust  Co. 

V.  Howell,  96. 
Strain  v.  Mfg.  Co.,  300. 
Strand  v.  Griffith,   177,   178,   187. 
Straus  V.  Wessel,  166. 
Street  v.  Blay,  3&5,  368,  369. 
Strickland  v.   Graybill,   178. 


Strickland  v.  Turner,  45. 

V.  Willis,  180.  184. 
Strong  V.  Dodds,  89,  291. 

V.  Doyle,  79. 

V.  Taylor,  136. 
Stroud  V.  Pierce,  239. 
Strouse  v.  Elting,  109. 
Stuart  v.  Pennis,  75. 
Stubbs  V.  Luud,  328. 
Stucley  V.  Baily,  240. 
Studebaker  Bros.  Co.  v.  Man,  136. 
Studer  v.  Bleistein,  374. 
Sturm  V.  Boker,  10,  145. 
Sturtevant  v.  Ballard,  198. 

V.  Orser,  328,  331. 
Suit   V.    Woodhall,   127,   156,   211. 
Sullivan  v.  Sullivan,  88. 
Summers    v.     Hibbard,     Spencer. 
Bartlett  &   Co.,  308. 

V.  Vaughan,  237. 
Sumner  v.  Cottey.  130. 

V.  Hamlet,  126. 

v.  Woods,  136. 
Sun  Pub.  Co.  V.  Foundry  Co.,  294. 
Sunny  South  Lumber  Co.  v.  Lum- 
ber Co.,  138. 
Sutton  V.  Baker,  11. 
Sutro  V.  Rhodes,  3G2. 
Suydam  v.  Clark,  115. 
Swafford  v.  Spratt,  77. 
Swain  v.  Schieffelin,  378. 

V.  Seamens,  107,  108. 

V.  Shepherd,  144. 
Swallow  V.  Emery,  142. 

V.  Strong,  109. 
Swann  v.  Swann,  216. 
Swasey  v.  Vanderheyden's  Adm'r, 

2L 
Sweeney  v.  Owsley,  123. 
Sweetman  v.  Prince,  182. 
Swett  V.  Colgate,  251. 
Swift  V.  Bennett,  19. 
Syers  v.  .Tonas,  253,  365. 
Symns  v.  Schotten,  330. 
Symouds  v.  Hall,  30. 
Syracuse  Knitting  Co.  v.  Blaneh- 
ard,  180,  181. 


Tacoiua  Coal  Co.  v.  Bradley,  371, 

371'. 
Taft  V.  Cburcli,  50. 

V.  Travis,  Gl, 
Tallby  v.  OUicial  Ileceiver,  48. 
Talbot  Pav.  Co.  v.  Coruiau,  374. 
Talcott  V.  Heiulcrsou,  179, 
Tallman  v.  Franklin,  106. 
Talver  v.  West,  84. 
Tancred  v.  Steel  Co.,  28G. 
Tanner  &  De  Laucy  Engine  Co.  v. 

Hall,  140. 
Tansiey  v.  Turner,  97,  120,  12D. 
Tarling  v.  Baxter,  122. 
Tasker  v.  Crane  Co.,  200. 
Tatnian  v.  Humphrey,  49. 
Tatuui  V.  Keliey,  212. 
Taylor,  Ex  parte.  10. 
V.  Bowers,  222. 
V.  Caldwell,  309. 
V.  Fleet,  55. 
V.  Ford,  55. 
V.  Hare,  363. 
V.  Mills,  184, 
V.  Railway,  91,  117,  302. 
V.  Saxe,  307. 
V.  Smith,  90. 
V.  Wakefield,  84. 
T,   B.  Townsend  Brick   &  C.  Co. 

V.  Allen,  48. 
Teague  v.  Bass,  201. 

V,  Irwin,  178, 
Teal  V.  Auty,  75. 
Telford  v.  Adams,  203, 
Telhiride  Power  Transmission  Co, 

V.  Crane  Co.,  255, 
Tempest  v,  Fitzgerald,  95. 
Tennent    Shoe    Co.    v.    Stovel    & 

Brand,  184. 
Tennent-Stribllng  Shoe  Co.  v.  Ro- 
per, 217. 
Tennessee   Coal,    I.   &   R.   Co.    v. 

Sargent,   176. 
Tennessee  River  Compress  Co.  v. 

Leeds,  2,'0. 
Terhune  v.  Coker,  178. 


CASES  CITED.  487 

[Tlie  figures  refer  to  page^.l 

Terry  v.  Bjs.vell,  302. 

V.   WlK'<-!vr,  120.   127,  142. 
Textor  V.  Hutchiiigs,  307, 
That'her  v.  Moors,  41. 
Tliaxter  v.  Foster,  194. 
Tliayer  v.  Luce,  109. 

V.  Turner,  191. 
'i'heiss  V.  Weiss.  .3,^>G. 
Theo.     Hamm     Brewing     Co.     v. 

Ydung,  225. 
Thick  V.  Railroad  Co.,  296. 
Third  Nat.  Bank  v.  Smith,  37, 

V.   Steel.  109. 
Ttiirlby  v.  Rainlx)w,  141, 
Thomas  China  Co.  v.  O,  W.  Ray- 
mond Co.,  308. 
Tliomas  V.  Shoemaker.  279. 
TiKtmason  v.  Lewis.  140. 
Tliomp.son  v.  Alger,  98,  99,  350. 

V.  Brannin.   12.3. 

v.  C^)nover,  126. 

V.  Doming,  33. 

V.  Dc)u;:las.  57. 

V.  Fairlianks.  49. 

V.  Gaffey,  3."hi. 

V.  Ganliner,  116. 

V.  Gould.  45,  309. 

V.  Harvey.  309. 

V.  Lay.   17. 

V.  Libby,  180,  258,  373. 

V.  Peck.  191. 

V.  Railroad  Co.,  97,  292.  317. 

V.  Rose,  194. 

V.  Stewart,  328. 

V.  Wedge,  1.32.  317. 
Thorns  V.  Dingley,  377,  378. 
Thomson  v.  Poor.  75. 
Thorne  v.   McVeagh,  240.  378. 
'I'hornton  v.  Charles,  116. 

V.  Kempster,  53.  105.  110. 

V.  Meux.    Moody    &    M.,    110. 

V.  Wynn,  308. 
Tlinrpe  v.  Hanscom,  22. 
Thorp  v.  Smith.  183. 
I'hr.ill  v.  Wright.  18,  21. 
Thurman  v.  Omaha.  2,^*^. 
ThurncI!  v.  Ralhiniif.  W. 


488 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Thurston  v.  Blanchard,  191. 

Tiedeman  v.  Kuox,  35. 

Tift  V.  Wight  &  Weslosljy  Co.,  155. 

Tigress,  The,  338. 

Tilford  V.  Dotson,  76. 

Tillock  V.  Webb,  217. 

Timken    Carriage    Co.    v.    C.    S. 

Smith  &  Co.,  250,  267. 
Tindle  v.  Birkett,  184. 
Tingley  v.  Boom  Co.,  112. 
Tipton  V.  Feitner,  268. 
Tisdale  v.  Buckmore,  191. 

V.  Harris,  72. 
Titcomb  V.  Wood,  194. 
Tobin  V.  Larkin,  104. 
Todd  V.  Gamble,  351. 
Tolerton  &  Stetson  Co.   v.  Bank, 

173. 
Tomblin  v.  Callen,  218. 
Tomklnson  v.  Staight,  84. 
Tompkins  v.  Haas,  81. 

V.  Sheehan,  84. 
Tone  V.  Wilson,  182. 
Tootle  V.  Bank,  192. 

V.  Petrie,  176. 
Torkelson  v.  Jorgeuson,  239. 
Torrey  v.  Corliss,  155,  225. 
Totten  V.  Burhans,   182. 
Toulmin  v.  Hedley,  295,  297. 
Towers  v.  Osborne,  63,  66. 
Towle  V.  Dresser,  15. 

V.  Larrabee,  215. 
Towne  V.  Collins,  29. 

V.  Davis,  120,  123,  124,  142. 
Townend  v.  Drakeford,  116. 
Townley  v.  Crump,  317. 
Townsend  v.  Cowles,  181. 

V.  Hargraves,  87,  93,  96,  101, 
118,   123. 
Tracy  v.  Talmage,  211.  212. 
Trainer  v.  Trumbull,  19,  21. 
Travers  v.  Leopold,  9. 
Treadwell  v.  Reynolds,  299. 
Treat  v.  Hiles,  80. 
Tregelles  v.  Sewell,  155. 
Trigg  V.  Clay,  356. 
Triplet!   v.    Implement   Co.,    135, 
136. 


Tripp  V.  Armitage,  71,  158. 

V.  Machine  Co.,  301. 
Trist  V.  Child,  223. 
Troewert  v.  Decker,  215. 
Trotter  v.  Heckscher,  289. 
Troy    Grocery    Co.    v.    Potter    & 

Wrightington,  257. 
Trudo  V.  Anderson,  304. 
Trueman  v.  Loder,  103. 
Truschel  v.  Dean,  261. 
Tucker  v.  Humphrey,  324. 

V.  Moreland,  14. 

V.  Mowrey,  221. 

V.  West,    216,    217. 

V.  Woods,  51. 
Tufts   V.    Bennett,    346,    349,   350. 

V.  Brace,  141. 

V.  D'Arcambal,  140. 

V.  Grewer,  161. 

V.  Griffin,  142. 

V.  Lawrence,    161,   352. 

V.  McClure,    277. 

V.  Mining  Co.,   102. 

V.  Sylvester,  331. 

V.  Wynne,  142. 
Tull  V.  David,  113,  114. 
Tupper  V.  Cadwell,  19,  20. 
Turberville  v.  Whitehouse,  19. 
Turley  v.  Bates,  128. 
Turnbow  v.  Beekstead,  7. 
Turner  v.  Felgate,  30. 

v.  Foundry  Co.,  144. 

V.  Harvey,  175. 

V.  Huggins,  175. 

V.  rx)rillard  Co.,  105,  107,  109. 

V.  Mason,  69. 

V.  Moore,  123. 

V.  Rusk,  22, 

V.  Trisby,  19. 

V.  Trustees,  166,  327. 
Tustin  Fruit  Ass'n  v.  Fruit  Co., 

340. 
Tuthill  V.  Skidmore,  313,  315,  342. 
Tuttle  V.  Brown,  240. 

V.  Holland,  211. 
Twyne's  Case,  200. 


CASES  CITKD. 
[The  Ogurca  refer  to  pagrs.1 


480 


Tyler  v.  Aupusta.  r.(K). 
V.  Carllslo.  12l'l'. 
V.  Freeman,  ll2ri. 
V.  Gallop's  Estate.   17. 


u 

Uhler  V.  Semple,  177. 
Ullinan  v.  Ass'ii,  220,  222. 
Ulluiaun  V.  Kent,  341. 
Uuderwood  v.  Wolf,  371,  375. 
Unexcelled  Fireworks  Co.   v.   Po- 
ntes, 155,  349. 
Union  Iron  Works  v.  Spottswood, 

259. 
Union    I-eague   Club    v.    Machine 

Co.,  235. 
Uuiou  Nat.  Bank  v.  Iluut,  ISO. 
Union  Pac.  R.  Co.  v.  Jobuson,  33, 

35. 
Union   Stockyards  &  Transit  Co. 
V.  Cattle  Co.,  6. 
V.  Mallory,  Son  &  Ziinuieruiau 
Co.,  ISS,  207. 
United   Railways  &   Electric   Co. 

V.  H,  Webr  &  Co.,  355. 
Upson    V.    Holmes,    74,    129.    130. 
Upton  V.  Cotton  Mills,  132. 

V.  Tribikock.  181. 
T'pton   Mfg.   Co.    V.    Hulske,   3G0. 
U.  S.  V.  Bradley,  224. 
V.  Lapene,  212. 
V.  Peck,  305. 

V.  Pine  River  L.  &  I.  Co.,  280. 
V.  Robeson.  2.33. 
V.  Sbriver,  157. 
United     States    Reflector    Co.    v. 

Rusbton,  85. 
Unltype  Co.  v.  Long.  1.35. 
Utley  V.  Donaldson,  52. 


Vail  V.  Strong,  12. 
Valentine  v.  Brown,  100. 
Vnlentini  v.  Canali,  IC. 
Valpy  V.  Gibson.  59,  Gl,  .332. 

V.  Oakeley,  314,  315,  317.  S5^. 


Van  Braclilin  v.  Fonda.  202. 
Van  Brocklcn  v.  Snu-allie,  40.  12$. 

310,  341.  .342.  .".43. 
Van  Castoel  v.  liooker,  KW,  327. 
Vandegrift    v.     Enjflneerlng    Co., 

3<i5.  ;;os. 
Vandenbergb   v.    Spooner,    103. 
\'aiidu7.or  v.  .\11<mi,  137. 
Van  I'pps  V.  Harrison.  178. 
Van  Eps  v.  Scbeneitady,  81. 
Van  Hoozer  v.  Cory,  48. 
Van  Horn  v.  Rucker.  340. 
Van  Kieek  v.  Loroy,  185. 
Van  Valkenburg  v.  Gregg,  275. 
Van  Winkle  v.  Croweil,  2'.tS. 
Van  Woert  v.  Railro.nd  Co.,  93. 
Van  Wyck  v.  .Mien,  251.  379. 
Varley  v.  Wbli)p.  240,  :'.00. 
Varney  v.  French.  215. 
Vaughn  v.  McFayden,  1.39. 

V.  Railroad   Co..    IGij,    170. 
Vawter  v.  Griflin,  72. 
\'ea.sey  v.  Doton,  170. 
Veazie  v.  Holmes,   1.54. 

V.  Williams,  102. 
Vent  V.  Osgood.  21. 
Ven tress  v.  Smith,  20. 
Venus,  The,  127. 

Vermont  Marble  Co.  v.  Brow,  11. 
\'ertue  v.  .Jewell,  334. 
Vickers  v.  Hertz.  42,  43. 

V.  Vickers,  00. 
Vidette,  The.  338. 
Viele  V.  O.sgood,  111. 
Vicrling  v.  Furnace  Co.,  237. 
\'ietor  V.  Stroock.  SO. 
\'igers  V.  Sanderson.  l.'O. 
Village   of   Bellefontalne   v.    Va»- 

saux,  105. 
Vincent  v.  Gcrmond,  87. 

V.  Tyelnnd.  371. 
Vining  V.  Gllbreth,  207.  272. 
Vinz  V.  Beatty.  217. 
Vodrey  Potterj*  Co.  v.  H.  E.  Home 

Co..  170. 
Voirt  V.   SchlenojHvk.   157,  S.'VJ. 
Voorhls  V.  Olmstead,  321. 
Vullcevlch  V.  Skinner.  77. 


490 


CASES   CITED. 
[The  figures  refer  to  pages.] 


w 


Wabash  Elevator  Co.  v.  Bank,  123, 

125. 
Wachsmuth  v.  Martini,  185. 
Waddington  v.  Oliver,  284. 
Wadhams  &  Co.  v.  Balfour,  120, 

154,  296. 
Wadsvvorth  v.  Dnnnam,  224. 
Waeber  v.  Talbot,  251,  375. 
Wagar  v.  Railroad  Co.,  149. 

V.  Wagoner,  23. 
Wagner  v.  Breed,  225. 

V.  Hallack,  157. 

V.  Ilildebraud,  218. 
Wailing  v.  Toll,  19. 
Wainer  v.  Insurance  Co.,  118. 
Wain  V.  Warlters,  104. 
Wait  V.  Baker,  152,  159,  165,  166, 

291. 
Waite  V.  Jones,  223. 

V.  McKelvy,  89. 
Waldron  v.  Cliase,  149. 
Waldrop  v.  Wolff,  185. 
Walker  v,  Butteriek,  10. 

V.  Davis,  283. 

V.  Lovell,  224. 

V.  Nussey,  98,  99. 

V.  Railroad  Co.,  32. 

V.  Staples,  9. 

V.  Supple,  73. 
Wall  v.  Schneider,  35. 
Wallace  v.  Breeds,  148. 

V.  Cohen,  194. 

V.  Lark,  211. 
Walley  v.  Montgomery,  106. 
Walsh  V.  Morse,  183, 

V.  Myers,  307. 

V.  Young,  15, 
Walter  v.  Bloede,  108. 

V.  Reed,  269. 

V.  Ross,  336. 
Walter  A.  Wood  Harvester  Co.  v. 

Ramberg,  263, 
Walters  v.  Eaves,  183, 

v.  Railroad  Co.,  33. 
Walton  V.  Black,  276,  289. 

V.  Lowrey,  75. 


Wanisley  v,  H.  L.  Horton  &  Co., 

.50. 
Wanamaker  v.  Yerkes,  315. 
Wanser  v.  Messier,  247. 
Ward  V.  Hobbs,  175. 

V.  Shaw,  123,  132. 

V.  Taylor.   166,  292. 

V.  Ward,  216. 
Warden  v,  Marshall,  298,  318, 
Warder,  Bushnell  &  Glessner  Co. 

V,  AVhitish,  234. 
Warder,  Mitchell  &  Co.  v.  Hoover, 

132. 
Ware   River   R.   Co.    v.   Vibbard, 

313. 
Warfield  v,  Warfleld,  23. 
Waring  v.  Mason,  264. 
Warner  v.  Ice  Co.,  260.    . 

V.  Martin,  38. 

V.  Willington,  105. 
Warner  Elevator  Mfg.  Co.  v.  As- 
sociation, 140. 
Warren  v.  Buck,  262. 

V.  Chapman,  224. 

V.  Cola  Co.,  239. 

V,  Mfg.  Co.,  108, 

V,  Milliken,  151. 
Warren  Chemical  &  Mfg.  Co.  v. 

Dolbrook,  68. 
Warten  v.  Strane,  149. 
Warwick  v,  Bruce,  15.  77. 
Warwick  Iron  Co.  v.  Bank,  201, 
Washbourn  v.  Burrows,  74. 
Washburn-Crosby  Co.  v.  Railroad 

Co.,  37. 
Washington  Ice  Co.  v,   Webster, 

84. 
Wasserboehr  v,  Boulier,  225, 

V,  Morgan,  212.  225. 
Wasserman  v.  Sloss,  222. 
Watchman  v.  Crook,  228, 
Waterbury  v.  Miller,  179. 
Waterhouse  v.  Skinner.  269. 
Waterman  v,  Meigs,  64,  67,  105. 
Waters  Heater  Co.  v.  Mansfield, 

144, 
Watkins  v.  Bank.  376. 

V.  Paine,  156,  299. 


CASKS  rrn:n. 

[The  flgure.s  refer  to  pages.] 


Watson,  Ex  parte.  331, 

337. 

V. 

llrown,  55. 

V. 

Inliabitauta    of 
359. 

Net 

Hlhuni. 

V. 

Kirby,  35.'>. 

V. 

Rootle,  241. 

Watts 

V.  AInswortb,  l<t."i. 

V. 

Cumnihis,   170. 

V. 

Friend.  74.  81. 

V. 

Hendry,  149. 

Way  V.  Rytber,  177,   1' 

•8. 

V.  Wakefield,  12. 
Wayiuell  v.  R»vd,  225. 
Weaver  v.  Wallace,  187. 
Webb  V.  Fairmaner,  279. 

V.  Railroad  Co.,  73. 

V.  Stepbenson,  307. 
Webl)er  v.  Donnelly.  211.  225. 
Weber  v.  Baessler,  331. 
Webster  v.  Anderson,  95. 

V.  Munger,   212,  225. 
Weed  V.  Page,  188. 
Weeks  V.  Hull,  279. 

V.  Pike.  136. 

V.  Prescott.  201. 
Weidmann  v.  CliMinpion,  115. 
Weil  V.  State,  141. 

V.  Stone.  205. 
Welland  v.  Sunwall.  8. 
Weill  V.  Metal  Co.,  277. 
Weinier  v.  Clement,  2G5. 
Weir  V.  Rell.  182. 

V.  ITudnut.  09. 
Welch  V.  Burdick.  178. 

V.  Olmstead.  177. 

V.  Spies,  129,  149. 
Weld  V.  Came.  127. 

V.  Cutler,  l.'O. 
Weles  V.  McNerney,  145. 
Wellauer  v.  Fellows.  .56. 
Wells  V.  Calnan,  309. 

V.  Cook.   184. 

V.  Day,  81. 
Wellston   Cola  Co.   v.  Paper  Co.. 

353. 
Wentworth  v.  Dows.  376. 

V.  Onthwalte,  338. 

V.  Tnbb,  24. 


401 


Co.  V. 


Wertbeinier  Schwartz  Sli« 

FariK,  181. 
\Ve.M)lo8kl  V.  Wys4)skl,  128. 
West  V.  Ke<'litel.  2SJ),  201. 

V,  Graff,  180. 
W'estbruck  v.  Fawr,  77. 
Western  Rank  of  Scotland  v.  Ad- 
die,  182. 
Westeni  Twine  Co.  v.  Wright,  377. 
Westheimer  v.  Welsman.  225. 
West  Jersey  R.  Co.  v.  Car  Works 

Co.,  101. 
West   Micbisan    Fiinilture  Co.    v. 

Glue  Co.,  257. 
Weston  V.  Rrown,  11. 
Westzinthus,  In  re,  '.^W. 
Wetberill  v.  Ni'ilson.  254. 
Wbarton  v.  Mackenzie.  IS,  20. 
Wheat  V.  Cros.s.  .55,  :',*'>'!. 
Wheeler  v.  Russell,  214. 

V.  Sumner,  207. 

V.  Woodw.ird,  ;;02. 
Wheeler    &    Wilson    .Mfg.    Co.    v. 
Bank.  132. 

V.  Givan.  .304. 

V.  Thomp.son,  377. 
Wheelliouse  v.  Parr,  159,  292. 
Wheel  iuR  &  L.  E.  R.  Co.  v.  Koontz, 

330,  334. 
Wheelwright  v.  DeiR\vster,  29. 
Whipple  V.  Foot.  77. 
Wliistler  v.  Forster,  27. 
Wliitaker  v.  McCormick.  250. 

V.  Sunnier,  9. 
Whitbeck  v.  Van  N.-ss,  :;03. 
Whitcomb  V.  Joslyn.  15. 

V.  Whitney,   l(»l. 
White,  Ex  parte.  11. 

V.  A.  W.  Gray's  Sons,  140. 

V.  Bank.  222. 

V.  Barl>er.  218. 

V.  Breen.  100. 

V.  Cotton- Waste  Corp.,  15. 

V.  Drew.  09. 

V.   Fiteb.  181. 

V.  Foster.  75,  77. 

V.  Garden,  44.  194. 

V.  Mfg.  Co..  104.  114. 


492 


CASES  CITED. 
[The  figures  refer  to  pages.] 


W'hite  V.  Miller,  250,  251,  255,  379. 

V.  Mitchell,  329,  331. 

V.  Oakes,  141,  241,  259. 

V.  Solomon,  346. 

V.  Spettigue,  28. 

V.  Welsh,  316. 

V.  Wilks,  148, 
Whiteford  v.  Hitchcock,  61. 
Whitehead  v.  Anderson,  325,  329, 
330,  333,  337. 

V.  Root,  50.  . 

V.  Vanderbilt,  144. 
Whitehouse  v.  Frost,  148. 
Whitelaw  Furniture  Co.  v.  Boon, 

141. 
Whiteside  v.  Brawley,  190. 
Whitesides  v.  Hunt,  218,  219. 
Whiting  V.  Price,  187. 
Whitman     Agricultural     Co.     v. 

Strand,  56. 
Whitmarsh  v.  Walker,  74. 
Whitmore  v.  Iron  Co.,  254. 
Whitney  v.  Abbott,  140. 

V.  Bank,  3G2. 

V.  Beckforth,  11. 

V.  Boardman,  340,  341. 

V.  Eaton,  124,  125. 

V.  Go  in,  303. 

V.  Heywood,  244. 

V.  McConnell,  139. 
Whiton  V.  Spring,  304. 
Whittemore  v.  Gibbs,  72. 
Whitten  v.  Fitzwater,  180. 
Whittier  v.  Dana,  108. 
Whitworth  v.  Thomas,  179, 
Whywall  v.  Champion,  19. 
Wickham  v.  Martin,  194. 
Widoe  V.  Webb,  224. 
Wiedeman  v.  Keller,  262. 
Wieler  v.  Schilizzi,  248. 
Wiener  v.  Whipple.  113,  263. 
Wigand  v.  Sichel,  188. 
Wiggins  V.  Snow,  139. 

V.  Tumlin,  9. 
Wigton  V.  Bowley,  132,  169. 
Wilcox  V.  Cherry.  135. 

V.  Owens,  267. 

T.  Roath,  17. 


Wilcox  Silver  Plate  Co.  v.  Green, 

94,  291. 
Wilder  v,  Weakley,  23. 
Wilk  V.  Key,  180. 
Wilkes  V.  Ferris,  273. 
Wilkins  v.  Bromhead,  160. 

V.  Holmes,  159. 
Wilkinson  v.  Evans,  102. 

V.  Ferree,  245. 

V.  Heavenrich,  111. 

V.  King,  31. 

V.  Rex,  28, 
Wilks  V.  Davis,  60. 
William  B.  Grimes  Dry-Goods  Co. 

V.  Jordan,  181. 
Williams  r.  Bacon,  113. 

V.  Barfield,  214. 

V.  Briggs,  46. 

V,  Burgess,  71. 

V.  Given,    194. 

V.  Hodges,  332. 

V.  Jackman,  102. 

V.  Jones,  350. 

V.  Merle,  28. 

V.  Miller,  30. 

V,  Montgomery,  361. 

V,  Moor,  16. 

V.  Pasquali.  16. 

V.  Paul,  216,  222. 

V.  Reynolds,  359. 

V.  Robb,  374. 

V,  Robinson,    103,    104,    106, 
110. 

V.  Spafeord,  263. 

V.  Ward,  355. 

V.  Wentworth.  24. 

V.  Winsor,    49. 

V,  Woods,  115. 
Williams-Haywood    Shoe    Co.    v. 

Brooks,  70. 
Williams  Mfg.  Co.   v.  Brass  Co., 

234. 
Williamson  v.  Berry,  2,  12. 

V.  Lumber  Co.,  282. 

V.  Railroad  Co.,  197. 

V.  Russell,  194. 

V.  Sammons,  244. 
Willingham  v.  Veal,  60. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


40.1 


Wlllman  Mercautile  Co.  v.  Fu.ssy, 

1G9. 
Wlllnujrhby  v.  Mnulton,  107. 
Wilnicrdlng  v.  Furniture  Co.,  139. 
Wiliuot  V.  Lyou,   ISO. 
Wihnoth  v.  Ilainilton,  3J5G. 
Wilinsliurst  v.  Howkor,  1»>.">. 
Wilsou  V.  Cattle  Kanch  Co.,  189. 

V.  Fisher,    197. 

V.  Fruit  Co..  202. 

V.  Iluiulloy,  ISS. 

V.  Mill   Co..  113. 

V.  Reedy.  370. 

V.  Salt  Co..  148. 

V.  Sppar,  200. 
Wilson,  Close  &  Co.  v.  Pritchett. 

177. 
Wilson  &  Wallaoe  v.  Comer,  125. 
Wilstach  V.  Ileyd,  109, 
Wiltse  V.  Barnes,  20G. 
Wimp  V.  Early,  77, 
Wint-hell  v.  Carey,  217,  222. 
Winchester  v.  King,  138. 
Winchester  Mfg.  Co,  v.  Carman, 

13G. 
Wind  V.  Her,  145,  15G. 
Windmuller  v.  Pope,  306. 
Winoland  v.  Coonce,  194. 
Winfield  v.  Dodge,  221,  222. 
Wing  V.  Clark.  123. 
Winn  V.  Morris.  ."'.Gl. 
Winslde    State    Bank    v.    Lound. 

355, 
WInslow  V.  Iron  Co.,  341, 

V.  Leonard,  120.  205, 
Winsor  v.  I>ombard.  2.50,  2.53,  2G2. 
Wire  V,  Foster,  355. 
Wisconsin  Red  Pressed  Brick  Co. 

V.  Hood,  258,  250. 
Wiseman  v,  Vandeputt,  323. 
Witlierow  v.  Witherow,  57,  285. 
Withers  v.  Greene,  375,  37G, 

V.  Lyss,  128. 

V.  Reynolds,  287, 
Wittowsky  v.  Wasson,  GO. 
W.  K.  Henderson  Lumber  Co.  v. 
Stillwell  Co..  374, 


Wolcott   V.   Mount,  250.  251,  25i;, 

372,  379, 
Wolf  V.  Dietzseh.  1.50. 

V.  Dl   ljorQi\/At.  45,   1  12. 
Wnlfenden  v.  Wilson,  70. 
Wood  V.  Bell,  158. 

V.  Boynton.   .55. 

V.  Dixie,  100. 

V.  rx)sey,  19,  21. 

V.  Manley,  274. 

V.  Michaud.  2<«,  345. 

V.   RowclifTe.  40. 

V.  Sheldon.  .'502. 

V.  Smith,  240. 

V.  T.-issell,  274, 

V,  Yeatman,  194.  a30. 

Woodcock  V,   Bennd,  30, 

Woodford  v.  Patenson,  71. 

Woodham  v.  Allen,  223. 

Woodland  Co.  v.  Mendenhall,  314. 
poo 

Woodle  V.  Whitney,  250. 

Woo<lley  V.  Covcntn-,  321. 

Wood  Reaping  and  Mowing  Macli. 

Co.  V.  Smith.  2.'M.  235. 
Woodruff  V.  Hinman,  223. 
Woods  V.  Mc(;ee,  149,  150. 

V.  Russell.  IGI. 
Woodward  v.  Boone.  8. 
V.  Edmunds,  G. 
V.  Emmons,  298. 
Woolfe  V.  Home,  339. 
Woon.«:ocket    Rubber   Co.   v,   I>oe- 

wenberg,  195. 
Worcester  Mfg.  Co,  v.  Brass  Co.. 

3G8, 
Word  V.  Cavin.  240. 
Woitliington    v,   A.   G.    Rhodi's  & 

Son  Co.,  1.39. 
Wright  V.  Dannah,  113. 
V.  Daveni>ort.  3G8.  37G. 
V.  Tctlow.  1G2. 
V.   Wc'ks.  lOG. 
V.  Zoigler.  100. 
Wright   &  Colton   Wire-Cloth   Co. 

V.  Warren.  .33. 
Wriuli'v  V.  Cornelius.  341. 


494 


CASES   CITED. 
[The  figures  refer  to  pages.] 


W.  W.  Kendall  Boot  &  S.  Co.  v. 

Bain,  56. 
W.  W.  Kimball  Co.  v.  Mellon,  134. 

V.  Raw,  186. 
Wyler  v.  Rothschild,  88. 
Wylie  V.  Kelly,  96. 
Wyllie  V.  Palmer,  13. 


Yellow    Poplar    Lumber    Co.    v. 

Chapman,  349. 
Yerby  v.  Grigsby,  113. 
York  Co.  Bank  v.  Carter,  199. 
Youn  V.  Lamont,  23. 
Young  V.  Burton,  360. 

V.  Dalton,  345. 

V.  Heermans,  200. 

V.  Mfg.  Co.,  124. 

V.  Matthews,  126. 

V.  Mertens,   340,   343. 


Young  V.  Miles,  7.  149. 

V.  Minkler,  129. 

V.  Stevens,  23. 
Yukon    River    Steamboat    Co.    v. 
Gratto,  162. 


Zabriskie  v.  R.  Co.,  375.  376. 
Zacharie  v.  Franklin,  111. 
Zachrisson  v.  Ahman,  41. 
Zagury  v.  Furnell,  128. 
Zaleski  v.  Clark,  234. 
Zimmerman  v.  Morrow,  239. 
Zimmerman   Mfg.    Co.    v.   Dolph, 

237. 
Zipp  'Slfg.  Co.  V.  Pastorino,  295. 
Zoeller  v.  Riley,  44. 
Zouch  v.  Parsons,  14,  25. 
Zuchtmann  v.  Roberts,  136. 
Zuck  V.  McClure,  306. 


INDEX. 

[the  figures  refer  to  pages.] 


A 

"ABOUT." 

meauing  of,  'JS5. 

ACCEPTANCE, 

of  offer  to  buy  or  sell,  51. 

under  statute  of  frauds,  see  "Statute  of  Frauds." 
where  seller  delivers  too  uuicti,  property  does  not  pass  until,  159. 
"Where  gootls  made  to  order,  whether  necessary  to  pass  proper- 
ty, IGO. 
see  "Transfer  of  Property." 
by  buyer  In  performance  of  contract,  In  general,  liD7. 
duty   to  accept,  2GS,  207. 
meaning  of  acceptance,  207. 
express,  298. 
implied,  298. 

acts  of  ownership,  208. 
failure  to  rejert  within  reasonable  time.  200. 
effect  of  acceptance,  300. 

whether  right  of   action  for  breach  of   warranty   ffur- 

vives.  300. 
wlu'tlitr   waiver  of  ohiini   for  damages  for  delay,  300. 
liability  for  failure  to  accept  delivery,  301. 
right  to  examine  goods  before.  294. 
where  seller  delivers  wrong  quantity,  2S1. 
duty  to  accei)t  on  delivery  by  installmenfs.  2S7. 
see  "Performance  of  Contract." 
action  for  nonacceptance,  see  "Actions  for  Hreach  of  the  Con- 
tract." 
right  to  reject,  see  "Rejection." 

ACTIONS  FOR  r.RE.VCII  OF  THE  CONTRACT, 
remedies  of  the  seller,  344. 

action  for  price,  In  general.  344. 

where  property  has  passed,  .'544.  34.'». 

m.iy  recover  on  indebitatus  counts.  34.'5. 
where  sale  is  on  credit.  34.'. 
where  price  payable  l)y  1)111  or  note.  .34.'S. 
wli(>rt'  irofxls  delivered,  seller  may  not  rescind,  S4.^. 
Tiff.Sale8(2d  Ed.)  (40o) 


4:96  INDEX. 

[The  figures  refer  to  pages.l 

ACTIONS  FOR  BREACH  OF  THE  CONTRACT— Cont'd. 

where  property  has  not  passed,  344,  346. 
price  payable  absolutely,  346. 
conditional  sale,  139,  346. 

where  seller  has  uiianifested  inability  or  inten- 
tion not  to  perform,  346. 
wrongful  I'efusal  to  accept,  346. 

in  some  jurisdictions,  no  action  for  price,  346. 
in  some  jurisdictions,  action  for  price,  346. 
in  some  jurisdictions,  action  for  price,  provid- 
ed goods  not  salable,  348. 
action  for  damages  for  nonacceptance,  348. 
measure  of  damages,  348,  349. 
in  general,  349. 
where  available  market,  349. 
where  no  available  market,  349. 
where  goods  have  no  money  value,  349. 
where  contract  price  does  not  exceed  market  price, 

349. 
resale  to  establish  market  price,  350. 
where  buyer  repudiates,  350. 

where  seller  sues  for  present  breach,  350. 
may  not  increase  damages,  by  useless  perform- 
ance, 351. 
rescission,  where  buyer  repudiates,  353. 
remedies  of  the  buyer,  353. 

action  for  failing  to  deliver  goods,  353. 
measure  of  damages,  353,  354. 
in  general,  354. 

where  buyer   has  prepaid  price,  355. 
where  no  difference  between  contract  and  market 

price,  355. 
where   seller   repudiates,   355. 
where  time  of  delivery  is  extended,  355. 
where  no  market  price,  356. 
special   damages,   357. 

communication    of   special    circmnstances,   358. 
profits  of  subsale,  359. 
specific  performance,  3G0. 
recovery  upon  failure  of  consideration,  361. 
in  general,  301. 
where  title  fails,  361. 

where  subject  of  sale  is  invalid  security,  362. 
or  void  patent,  362. 
failure  must  be  total,  .303. 
action  for  converting  or  detaining  goods,  364. 
measure  of  damages  for  conversion,  364. 
replevin,  364. 


INDEX.  497 

[Tb«  figures  refer  to  pasos.] 

ACTIONS  FOR  lUlHACII  OF  THE  OONTIIAUT— Cont'd, 

breach  of  wairaiity,  3G5. 

rights   hi'fore   acceptance.   305. 

right  to  R'Joct,  Iniplu'd  warranty,  3fl5. 

express  warranty,  300. 

alhrniaiice  and  recovery  of  damages,  3o7. 

rescission  and  recovery  of  price,  307. 
rights   after   iiceeptance,   303. 

right  to  rescind,  308. 

action   for  damages,  308,  370. 
express  warranty,  370. 
Injplled    warranty,    372. 

diminution   of  damages,    recoupment,   374. 

cross-action,  376. 

counterclaim,  370. 

measure  of  damages,  308,  377. 

special  damages,  378. 

ACTTDAL  RECEIPT, 

see  "Statute  of  Frauds." 

^VFTER-ACQin  UKD  rUOI'KRTY, 
sale  of,  44,  48. 

AGENCY, 

to  sell,  distinguished  from   sale,   10. 
to  buy,  distinguished  from  sale,  11. 
see  "Agent" 

AGENT, 

to  sell,  may  not  exchange,  12. 

authorized   to   sign    under   statute   of   frauds,    see    "Statute   of 

Frauds." 
payment  to,  304. 

delivery  to,  as  terminating  right  to  stop  in  transitu,  331. 
to   Avhora    bill    of    lading   has   been    indorsed,    right  to   stop    In 

transitu,  334. 
right  to  stop  in  transitu  for  principal,  334. 
see  "Agency." 

AGREEMENT  TO  SEI.L, 
see  "Contract  to  Sell." 

ALIEN  ENEMY, 

sale  to,  illegal,  212. 

ANTECEDENT  DEBT, 

transfer  of  property  In  poods  for,  whether  a  sale,  9. 

whether  value,  in  purchase  under  title  vDldalile  for  fraud.  IfVi. 

whether  value  for  transfer  of  bill  of  lading,  to  defeat  right  of 

stoppage  In  transitu,  335. 

Tiff.Sales(2d  Ed.)— 32 


498  *  INDEX. 

[The  figures  refer  to  pages.] 

APPARENT  OWNERSHIP, 

"whether  gives  power  to  sell,  30,  31. 
see  "Who  can  Sell." 

APPROPRIATION, 

of  goods  to  contract,  see  "Transfer  of  Property." 

APPROVAL, 

sale  on,  143,  144. 

ARRIVE, 

goods  to,  sale  of,  235. 

ASSENT, 

see  "Mutual  Assent." 

ASSIGNEE  IN  BANKRUPTCY, 

of  fraudulent  buyer,  not  protected,  see  "Fraud." 

ATTORNMENT, 

delivery  by,  under  statute  of  frauds,  96. 
in  performance  of  contract,  271, 
in  termination  of  seller's  lien.  319. 

of  carrier,  in  termination  of  right  of  stoppage  In  transitu, 
332. 

AUCTIONEER, 

agent  authorized  to  sign  under  statute  of  frauds,  113. 

AUCTION  SALE, 

within  statute  of  frauds.  71. 


B 

BAILMENT, 

distinguished  from  sale,  6. 

deposit  of  grain  in  elevator  or  warehouse,  whether  sale  or  bail- 
ment,  7. 
with  option  to  buy,  8. 
pledge,  9. 
agency  to  sell,  10. 

with  option  to  buy,  distinguished  from  conditional  sale,  9,  134. 
distinguished  from  sale  or  return,  145. 
see  "Sale  on  Approval  or  Trial." 

BANK  BILLS, 

whether    goods,    wares    and    merchandise,    within    statute    of 
frauds,    72. 

BARGAIN  AND  SALE,  2. 

BARTER, 

see  "Exchange." 

BILL    OF    EXCHANGE, 

see  "Bills  and  Notes." 


INKKX.  4;»i> 

[The  figures  refer  to  pages.] 
BILL  OF  LADl.Nc;. 

uature  of  iiistnimoiit.  ,'13. 

iudorsomont  and  (U'llvory,  as  symliolirnl  delivery  of  goods, 

not  u  negotiable  iustrumeut,  .'53. 

■\vruiiKrul  delivery   by   carrier  under,  33. 

estiipiiel  of  carrier  delivering  g(M)ds  without  surrender  of,  33. 

statutes  declaring  negotiable,  35. 
Bale   by    peri^ou    in    possession    of,   30. 

whether  bona  tide  purchaser  acquires  title  by  transfer  of,  30. 

mercantile  view,  37. 
under  factors'  acts,  38. 
reservation  of  right  of  possession  or  jtropertj'  by,  102,  103. 

bill  of  lading  to  s«^ller  or  order.  102,  105. 

bill  of  lading  to  buyer  or  order,  102,  108. 

dealing  with  bill  «»f  lading  to  secure  price,  102.  1<»9. 
transfer  of,  as  defeating  seller's  lien,  319. 

as  defeating  seller's  right  of  stoppage  in  transitu,  323,  333. 
BILLS   AND   NOTES. 

as  subject   of  sale,  4. 

rights  of  bona  fide  purchaser  of,  20,  29. 

whether    goods,    wares,    and    merchandise,    witliin    statute    of 

frauds.  72. 
where  seller  draws  bill  of  exchange  on  buyer  and  deals  with 

bill  of  lading  to  secure  price.  102,  109. 
as  conditional  payment,  302,  304. 

effect  of  taking  as  waiver  of  seller's  lien,  312,  ;'>11. 

revival    of    lien   on    dishonor,   31G. 

revival  of  lien  on  insolvency,  31J5. 
price  payable  by,  failure  to  give,  345. 

action  for  price.  345. 
■where  subject  of  sale  is  invalid  bill  or  note,  see    Consideration." 

see   "Negotiable   Instruments." 

BONA   FIDE   PURCHASER, 

from  one  not  owner  of  goods,  in  general,  20,  27. 
in  market  overt,  28. 
of  negotiable  instnnnent,  29. 
on  sale  under  i)ower,  2'.>. 
where  owner  estopped.  30. 
from  person  in  possession  of  goods,  31. 
from   vendor   In  possession,  .32. 
from  jierson  in  possession  of  l»lll  of  lading,  30. 
under  factors'  acts,  38. 
from  one  having  voidable  title,  20,  43. 
contract  induced  liy  fraud.  193. 

does  not  inchnle  attaibing  creditor.   19-}. 

or  assignee  in  bankrujitcy,  194. 

whether  one  taking  for  antecedent  debt.  101. 


500  INDEX. 

[The  figures  refer  to  pages.] 

BONA  FIDE   PURCHASER— Cont'd. 

sale  voidable  by  creditors,  203. 
from  buyer,  where  delivery  is  conditional,  124,  133. 
from  buyer  under  conditional  sale,  185. 
from  buyer,  where  seller  has  lien,  319,  320. 

where  document  of  title  transferred,  319. 

where  seller  assents  to  subsale,  320. 
transfer  of  bill  of  lading  to,  as  defeating  right  of  stoppage  in 
transitu,  323,  333. 

see  "Capacity  of  Parties." 

BOUGHT  NOTE, 

of  broker,  as  memorandum  under  statute  of  frauds,  115. 

BREACH  OF  CONTRACT, 

see  "Actions  for  Breach  of  the  Contract." 

BREACH  OF  WARRANTY, 
see  "Warranties." 

BROKER, 

as  agent  authorized  to  sign,  under  statute  of  frauds,  115. 
payment  to,  304. 

c 

CAPACITY  OF  PARTIES, 
in  general,   13. 
necessaries,   13. 
distinguished  from  authority,  14. 

see    "Infants";     "Lunatics";    "Drunken    Men";    "Married 
Women." 

CARRIER, 

under  statute  of  frauds,  agent  to  receive,  but  not  to  accept,  89. 
effect  of  delivery  to,  in  transferring  property,  151,  155. 
appropriation  by  delivery  to,  as  agent  for  buyer,  155. 
where  seller  is  to  deliver  to  buyer  at  destination,  156. 
how  authority  to  make  appropriation  conferred,  156. 
effect  of  stipulation  to  deliver  f.  o.  b.,  156,  note  35. 
where  goods  are  shipped  C.  O.  D.,  157. 
seller  must  conform  to  authority,  159. 
reservation  of  right  of  possession  or  property,  130,  1G2. 
in   general,    162,    163. 
right  of  disposal,  163. 
by  bill  of  lading,  162,  163. 

bill  of  lading  to  seller  or  order,  162,  165. 
bill  of  lading  to  buyer  or  order.  162,  168. 
dealing  with  bill  of  lading  to  secure  price,  162,  169. 
delivery  to,  in  performance  of  contract,  290. 
delivery  to,  as  bailee  of  buyer,  291. 
where  seller  is  to  deliver  to  buyer  at  destination,  291. 


INDEX.  601 

[The  flgures  refer  to  pages.] 

OARRIi:n— Contd. 

reservatiun  of  ri^l't  of  possession  or  property,  202. 

delivery  to  wnuig  carrier,  "JWJ. 

duty  to  insure  safe  arrival,  L".>1.  -'02. 

du(y  to  insure,  29.S. 

buyer's  rifilit  of  examination,  295. 

wlK-re  p>otls  shipped  C.  O.  n.,  295. 
risl<  of  deterioration  In  transit,  201,  203. 
delivery   to,  as  terminating  seller's   lien,   .'{19. 
right  of  stopi)age  in  transitu,  after  delivery  to,  see  "Stoppage 
in  Transitu." 

CASU, 

payment  In,  presumption,  123.  2G8,  302. 
stipulation  for  payment  in,  effect,  123,   131. 
see  "Credit"  and  "Payment." 

CAVEAT  EMPTOR,  175,  253,  255. 

CHANCE, 

sale  of,  49. 

CHATTEL, 

what  chattels  included  !n  "goods."  5. 

Intended    for    a    fixture,    contract    for.    not    -within    statute    of 

frauds,  70. 
contract    to    make    improvements    on,    not    within    statute    of 

frauds,  71. 
fructus  Industriales  are  chattels,  5.  75,  77. 
si)ecific,  when  property  passes,  see  "Transfer  of  Property." 
unascertained,  when  projierty  jjasses,  see  "Transfer  of  Property." 

CHATl'EL   MOUTCAGE, 

distinguished  from  sale,  9. 
distinguished  from  conditional  sale,  134. 

statutes   regulating  chattel    mortgages,   conditional    sales   some- 
times held  within,  134,  note  81. 

CHOSE  IX  ACTION, 

as  suhject  of  sale,  4. 

whether    goods,    wares    and    merchandise,    within    statute    of 
frauds,  72. 

C.  O.  D., 

delivery  to  carrier  C.  O.  D..  effect  In  transferring  property.  157. 
whether  buyer  has  right  to  examine  goods  shipped  C.  Q.  D.,  295. 

COMMERCIAL   ACJENCY. 

rei>resentations  of  buyer  to,  see  "FriUid." 

CONDITIONS, 

transfer  of  property,  when  subject  to  condition,  119.  I.'V). 
tnuonditionai    contract,    121. 

putting    goods    Into    deliverable    state,    when    a    condition, 
121,   125. 


502  INDEX. 

[The  figures  refer  to  pages.] 

CONDITIONS— Cont'd. 

ascertainment  of  price,  wlien  a  condition,  121,  127. 
payment  of  price,  wlien  a  condition,  123,  131. 
waiver   of,    132. 

see    "Conditional    Sale." 
approval  or  acceptance,  vphen  a  condition,  see  "Sale  on  Ap- 
proval or  Trial." 
return  of  goods,  when  a  condition  subsequent,  see  "Sale 
or  Return." 
performance  of,  226,  227. 
dependent  and  independent  promises,  227. 
precedent,  227. 
concurrent,   227. 

conditions  and  warranties,  226,  228. 
term  "condition"  used  with  different  meanings,  228. 
contingent  or   casual  conditions,   229,   233. 
suspensive  or  suspensory  conditions,  233. 
promissory   conditions,   230. 
implied  conditions,   so   called,    230. 
proper,  232. 

sale  dependent  on   act  of  third  person,   233. 
sale  of  goods  to  be  satisfactory,  234. 
sale  of  goods  to  arrive,  235. 
fulfillment   of    implied    warranty,    a    condition,    265. 
payment  and  delivery,  concurrent   conditions,  268. 
in  contracts  for  delivery  by  installments,  287. 
excuses  for  nonperformance  of,  305. 
waiver,  305. 

performance  prevented  by  other  party,  305. 
renunciation  of  contract,  305,  306. 
where  party  to  perform  incapacitates  himself  from  perforin- 

ing,   307. 
Insolvency  of  buyer,  307. 
impossibility  of  performance,  305,  308. 

destruction  of  subject-matter  of  sale,  305,  308. 
legal  impossibility,  305,  310. 
fulfillment  of  warranty  a  condition,  365. 
implied  warranty,  365. 
express  warranty,  366. 

buyer  may  reject  goods  for  nonfulfillment  of,  365. 
implied    warranty    in    some    jurisdictions    termed    "condi- 
tion," 372. 
waiver  of  fulfillment  of,  and  election  to  treat  breach 
as  breach  of  warranty,  372. 
promise  forming  part  of  description  in  some  jurisdictions 
termed  "condition,"  and  does  not  sui-vive  acceptance  as 
to  visible   defects,   373. 
see    "Conditional    Sale";    "Performance    of    Contract"; 
"Transfer   of    Property" ;    "Warranties." 


iM>i:x.  603 

[The  flgurea  refer  to  pages.] 

CONDITIONAL    SALE. 

so   called,    where    possession    delivered,    but    property    reserved 

until  payment  of  price,  13.'l. 
distliiKUished   from    other  transactions,    l.'H. 
bailment  with  oi)tlou  to  buy,  9,  lol. 
mortjjage,    13-L 
lease,   1.34. 
effect  of,  13.'>. 

when  property  passes,  13.". 

attacliinj;  creditors  of  buyer.  13.'>. 
lM»na   lide  purchasers  from  buyer,   13.j. 
buyer  has  defeasible  Interest,  137. 
purchasers    from   buyer,    137. 
attachinjr  creditors  of  buyer.   138. 
buyer's  rights  against  trespassers,   133. 
purchasers  from  seller,  138. 
attaching  creilltors  of  seller,  138. 
remedies  of  seller,  138. 

right  to  possession  revests  on  default,  138. 
buyer's  rights   after  default,   139. 
waiver  of  default,  139. 
action    for   price.    139. 

whotlier  after  action  may  reclaim  goods.  1.39. 
whether  action  lies  after  reclaiming  ginxls,   140. 
whether  buyer  forfeits  partial  payments  by  default,  140. 
risk  of  loss,  141. 

see  "Conditions"  and  "Transfer  of  Property." 

CONFLICT  OF  LAWS, 
see  "Illegality." 

CONSIDKRATION, 
failure  of,  .301. 
buyer    may    rescind    for,   361. 
where  title   fails,   3ol. 

where  suljject  of   sale   Is   Invalid   security,   362. 
must  be  total,  30;'>. 
seller  may  not  rescind  for,  where  property  passes  and  goods  de- 
livered. 345. 
see  "Price." 

CONSIGNMENT, 

distinguished  from   sale.    10. 

CONSIGNOU. 

right  of  stoppage  In  transitu.  324. 

CONTRACT    OF    SALE, 

meaning,  3. 

under  statute  of  fr.iuds.  see  "Statute  of  Frauds";  "Salo." 


504  INDEX. 

[The  figures  refer  to  pages.] 

CONTRACT  TO   SELL, 
defined,    2. 

distinguished  from  sale,  2. 
distinguished  from  bailment  'with  option  to  buy,  8. 

CONVERSION. 

action  for  by  buyer,  where  property  has  passed,  see  "Actions  for 
Breach  of  the  Contract." 

COPYRIGHT, 

as  subject  of  sale,   4. 

COUNTERCLAIM, 

see  "Actions  for  Breach  of  the  Contract" 

CREDIT, 

sale  on,  presumption  against,  123,  269,  302. 
obtained  by  fraud,  179. 
giving,  as  waiver  of  seller's  lien,  312,  314. 
expiration  of,  as  reviving  seller's  lien,  312,  315. 
effect  of,  in  action  for  price,  345. 
see  "Cash";  "Payment." 

CREDITORS, 

attaching,  of  fraudulent  buyer,  not  protected,  194. 
when  sale  voidable  for  fraud  on,  197. 

who  are,  203. 
how  far  delivery  essential  to  transfer  of  property  against,  204. 

see  "Conditional  Sale." 


Q 

DAMAGES, 

action  for  price,  344. 

where  property   has  passed,   345. 

price  payable  by  bill  or  note,  breach,  345. 
where  property  has  not  passed,  344,  346. 
price  payable  absolutely,  346. 
wrongful   refusal  to  accept,  346. 
action  for  damages  for  nonacceptance,  34S. 
measure  of  damages,  348,  349. 
in  general,  349. 
where  available  market,  349. 
where  no  available  market,  349. 
where  goods  have  no  money  value,  349. 
where  contract  price  does  not  exceed  market  price,  349. 
where  buyer  repudiates,  350. 

where  seller  sues   for  present  breach,   350. 
may    not    increase    damages    by    useless   perform- 
ance, 351. 


iM>i:.\.  605 

[Tba  flgurea  rL-fur  to  pages.] 

DA  MAGES- Cont'd. 

uctiuii    l<ir  lailiug   to  deliver  goods,  353. 
un'iisuri'  of  (l.iinngps,  353,  354. 
in  general,  354. 

where    buyer    Las    prepaid    price,    355. 
where     no    dlftercuee    between    contract    and    market 

price,  355. 
Avhere  seller  repudiates,  .355. 
duty  to  mitigate  dniuages,  355. 
where  time  of  delivery  is  extended,  355. 
where   no   market   price,  350. 
special  damages,  357. 

communication   of   special   clrcnmstancps,   358. 
profits   of   subsale,   3.59. 
action  for  converting  or  detaining  goods,  3G-i. 
measure  of  damages  for  ctmverslon,  .304. 
action  for  breach  of  warranty,  .3<J5,  308. 
before  acceptance,  304,  300. 
after  acceptance,  308,  370. 

action    for    damages,    370. 
express  warranty,  370. 
implied  warranty,   372. 
diminution  of  damages,   recoupment,  374. 
cross-action,  370. 
counterclaim,  370. 
measure    of    damages,    368,    377. 
special  damages,  378. 
DAYS, 

when  certain  number  allowed   for  delivery,  how   counted,  279. 

DEALER, 

sale    by,    whether    Implied    warranty    of    fitness    for    purpose, 

252,  2.58. 
sale  by,  Implied  warranty  of  merchautableuess,  252,  200. 
see  "Warranties." 

DEALER'S  TALK, 

see    "Fraud." 

DECEIT, 

action  for,  see  "Fraud." 

DELIVERY, 

as  constituting  actual  receipt,  see  "Stat\ito  of  Frauds." 
not  essential   to  transfer  of  property,   TJO.   121. 
on   condition   of   Immediate   payment,    124. 
goods  to  be  put  into  deliverable  state,  121,  125. 
to   be  delivered   at  particular  place,   127. 
unconditional,  as  waiver  of  condition  of  payment,  132. 
effect  of   conditional   delivery,    132. 
delivery    to   carrier,    133. 


506  INDEX. 

[The  figures  refer  to  pages.] 

DELIVERY— Cont'd. 

to  buyer  with  lesei'vation  of  property  until  payment  of  price, 

see  "Conditional  Sale." 
to  buyer  on  approval,  or  on  trial,  or  on  satisfaction,  see  "Sale 

on  Approval  or  Trial." 
to  buyer  on  "sale  or  return,"  see  "Sale  or  Return." 
appropriation  by  delivery  to  carrier,  151,  152,  155. 

see   "Transfer   of   Property." 
retention  of  possession  as  evidence  of  fraud  on  creditors,  197,  200. 
how   far   delivery    essential    to    transfer    of    property    against 
creditors  and  purchasers,  204. 
what  constitutes,  206. 
in  performance  of  contract,  268. 

delivery    and   payment   concurrent   conditions,   268. 
meaning  of  deliverj-,  269,  270. 
constructive  delivery,  271. 
symbolical   delivery,  272. 
place,  time  and  manner  of  delivery,  in  general,  270. 
seller  not  bound  to  send  goods.  273. 
goods  in  possession  of  third  person,  274. 
place  of  delivery,  275. 
time  of  delivei-y,  277. 
reasonable  time,  277. 
when   time    is   fixed,   278. 
hour  of  delivery,  279. 

whether   delay   in   delivery  waived  by   acceptance, 
300. 
expenses  of   putting  in   deliverable   state,   280. 
delivery  of  wrong  quantity,  in  general,  281. 
of  too  much,  281. 

of  goods  mixed  with  other  goods,  283. 
of  too  little,  286. 

meaning  of  "more  or  less,"  "about,"  285. 
delivery    by    installments,   287. 
delivery  to  carrier,  290. 
see  "Carrier." 
In  termination  of  lien  of  unpaid  seller,  312,  317. 
by  delivery,  to  buyer,  317. 
what  constitutes,  317. 
where  goods  are  in  possession  of  seller,  318. 

as  bailee  of  buyer,  318. 
where  goods  are  in  possession  of  buyer,  318. 
where  goods  are  in  possession  of  third  person,  319. 
by  delivery  to  carrier,  319. 
part  delivery,  321. 
by  carrier,  as  terminating  transit,  see  "Stoppage  in  Transitu." 
action  by  buyer  for  failing  to  deliver,  see  "Actions  for  Breach  of 
the  Contract." 


INDKX.  507 

[The  figures  refer  to  pages.] 

DELIVERY    ORDER, 

effect  of,  under  factors'  acts,  .39. 

effect  of,  as  dolivory  untler  statute  of  frauds.  M. 

effect  of  transfer  of,  as  terniinatintr  seller's  lien,  319. 

DESCRIPTION. 

implied  warranty  on   sale  by,  see  "Warranties." 

DESTRUCTION   OF   SUR.TECT-MATTER   OF   SALE, 
before  contract  of  sale,  44,  45. 

after  contract  to  sell,  but  before  property  Las  passed,  305,  SW. 
after  property  bas  passed,  309. 
see  "Risk  of  Loss." 

DETAINING  GOODS, 

action  for  by  buyer,  where  property  has  passed,  see  "Actions  for 
Breach  of  the  Contract." 

DETERIORATION, 

of  goods  in  transit,  whether  covered  by  warranty  of  merehant- 

ableness.  2G1. 
buyer  talies  risk  of,  293. 

DISCLOSURE, 

failure  of  seller  or  buyer  to  make,  whether  constitutes  fraud,  175. 

DISPOSAL, 

I'eservation  of  right  of,  see  "Transfer  of  I'l-uperty." 

DIVISIBLE  CONTRACT, 

wliere  delivery  is  by  installments,  287. 
where  part  of  consideration  is  illegal,  223. 
where    consideration    is    divisii>le.    .-lud    buyer,    having    prepaid 
price,  accepts  delivery  of  part,  3G3. 
see  "Entire  Contract" 

DOCK  WARRANT, 

effect  of  under  factors'  acts,  39. 

transfer  of,   does  not   constitute  delivery,   272. 

effect  of  transfer  of  as  terminating  seller's  lieu,  319. 

DOCUMENT  OF  TITLE, 
under  factors'  acts,  39. 
effect  of,  at  common  law,  272. 
effect  of  transfer  of,  as  terminating  seller's  lieu,  319. 

DRUNKEN  MEN, 

capacity  to  buy  and  sell,  21,  24. 
necessaries,  24. 
see  "Parties." 


508  INDEX. 

[The  figures  refer  to  pages.] 


EARNEST, 

see  "Statute  of  Frauds." 

EFFECT  OF  CONTRACT, 

in  passing  the  property. 

see  "Transfer  of  Property." 

ELEVATOR, 

deposit  of  grain  in,  whether  sale  or  bailment,  7. 

grain  in,  owned  in  common,  transfer  of  undivided  share,  150. 

EMBLEMENTS, 

as  subject  of  sale,  5. 

whether    goods,    wares,    and    merchandise,    within    statute    of 
frauds,  75,  77. 

ENTIRE    CONTRACT, 

for  sale  of  goods  and  other  objects,  whether  within  statute  of 

frauds,  80. 
whei'e  contract  entire,  buyer  may  reject  partial  performance,  283. 
see  "Divisible  Contract." 

EQUITABLE  ASSIGNMENT,  44,  48. 

ESTOPPEL, 

against  owner  where  goods  sold  by  another,  27,  30. 
sale  by  person  in  possession  of  goods,  31. 
sale  by  vendor  in  possession,  32. 

of  carrier  delivering  goods  without  surrender  of  bill  of  lad- 
ing, 33. 
sale  by  person  in  possession  of  bill  of  lading,  36. 
of  seller  to  assert  lien,  by  assenting  to  subsale,  320. 
see  "Bona  Fide  Purchasers" ;  "Who  Can  Sell." 

EVIDENCE, 

parol,  to  explain  note  or  memorandum,  within  statute  of  frauds, 

106. 
to  vary  contract  in  writing,  100. 

to  shoAV  that  writing  is  not  note  or  memorandum,  within 

statute  of  frauds,  107. 
as  to  subsequent  agreement  to  modify  original  contract,  107. 
to  prove  warranty,  when  contract  in  writing,  237. 
whether  express  excludes  implied  warranty,  2C5. 
of  intention,  as  to  when  property  is  to  pass,  see  "Transfer  of 
Property." 

EXAMINATION, 

opportunity   to  examine  goods,   effect  on   implied  warranty   of 

merchantableness,  2G0. 
right  to  opportunity  to  examine  goods  on  sale  by  sample,  262, 

264. 


INDEX.  609 

[The  flgurcs  refer  to  pages. ] 

EXAMINATION— Coiifd. 

buyer's   right    to   examine   goods    before   acceptanop,   see   "Per- 
formance  of   Contract." 
whether  promise   forming  part   of  description   snrvlves  neccpt- 
ance,  where  buyer  has  opportunity  to  examine  gooda,  373. 

EXCHANGE, 

dlstinguislu'd  from  sale,  12. 

legal  effect,  12. 

form  of  pleading,   12. 

measure  of  damages,  12. 

authority  to  exc-hange,  12. 

contract  for.  within  statute  of  frauds,  71. 

EXCUSES, 

for  nonperformance  of  conditions, 
see  "Performance  of  Contract." 

EXECUTED  CONTRACT  OF  SALE, 
meaning  of,  3. 

EXECUTED    SALE, 
meaning  of,  3. 

EXECUTION, 

sale  on,  by  sheriff,  30. 

EXECUTORY  CONTUACT  OF  SALE, 
meaning  of,  3. 

EXECUTORY    SALE, 
meaning  of,  3. 

EXISTENCE, 

of  subject-matter  of  sale,  see  "Subject-Matter  of  Sale." 

EXPRESS  WARRANTY, 
see  "Warranties." 

F 

FACTOR, 

payment  to,   n04. 

right  of  stoppage  in  transitu,  324. 

principal  consigning  goods  to,  right  to  stop  In  transitu,  324. 

FACTORS'  ACTS, 
In  general,  27.  38. 
In    England,    38. 
In  the  United  States.  41. 
transfer  of  documents  of  title,  as  excluding  seller's  lien,  310. 

FAILURE   OF   CONSIDERATION, 
see  "Consideration." 

FALSE  REPRESENTATION, 
see  "Fraud." 


510  INDEX. 

[The  figures  refer  to  pages.] 

FITNESS  FOR  PURPOSE, 
Implied    warranty    of. 
see    "Warranties." 

FIXTURES, 

contract   to   sell    chattel   intended   for   fixture,   -whether  -n-ithitt 

statute  of  frauds,  70. 
removable,  -whether  within  statute  of  frauds,  72,  78. 

F.  O.  B., 

meaning  of,   156,   note  35. 

FOOD, 

see  "Provisions." 

FORM, 

of  contract  of  sale,  50,  56. 
see  "Statute  of  Frauds." 

FRAUD, 

contract  of  sale  induced  by,  174. 
characteristics  of,  174. 
action  for  deceit  a  test,  174. 
is  a  false  representation,  175. 

-when  failure  to  disclose  is  fraudulent,  175. 
representation  must  be  of  fact,  176. 
not  matter  of  opinion,  176. 
statement  of  value,  177. 
dealer's  talk,  178. 

quality,  character,  or  soundness  of  goods,  178. 
not  matter  of  intention,  179. 
intention  not  to  pay,  179. 

failure    to    disclose    insolvency,    180. 
absence  of  reasonable  expectation  of  ability  to- 
pay,  180. 
representation   by   buyer  as  to  financial  condition, 
181. 
not  matter  of  la-w,  181. 
representation   must   be   with   kno-n-ledge   of  falsity,   or   in 
reckless  disregard  of  truth.  182. 
unqualified  statement  of  material  fact,   183. 
motive  immaterial,  183. 
representation  must  be  -nith  intention  that  it  be  acted  on, 
183. 
representation  to  commercial  agency,  184. 
representation  must  be  material  and  must  induce  sale,  185^ 
what  representations  deemed  material,  185. 
need  not  be  sole  inducement,  185. 

•where  defrauded  party  fails  to   use  means  of  knowl- 
edge.   186. 
representation  must  deceive,  186. 


iM>i:x.  511 

[The  figures   refer  to  pages.] 
FKAUD— Cont'd. 

rc'i)n'sc'iit!ition  wlit-re  imans  of  kiiowlcdjie  arc  at  hand,  187. 
reiiicdios  of  dcfraudiHl  party,  18.S. 

election  to  allirin  or  rescind,   I.H.S. 

attirniance  or  resiissiou  must  be  In  tuto,   1S3. 
alliruiance,  liow  e(Te«ted,  18!>. 
reseissioa  how  effiH.-tcd,  190. 

partj-    rescinding    must    make    restitution.    191. 
depreciation  of  goods  in  value  will  not  defeat 

rescission,    11)2. 
re<iuirement  of  restitution,   wlien   rfla.\ed,   VJ2. 
bona  tide  i)urcliascr  for  value  from  fraudulent  buj'- 
er  protectetl,  188,  lO.*?. 
but    not    attaching    creditor,     I'.it. 
or  assignee  in  l)ankruptcy,    I'.M. 
whetiier  pre-existing  debt  constitutes  value,  194. 
sale   induced  b.v   fraud  disiiniiuishcd   iiom   dcllver.v 
of  possession  induced  by  fraud,  ItHJ. 
bona   tid<'   jinrcliaser   from   one  olitaining  good.s 
by    fraudulently    Impersonating   another    not 
protected   I'M). 
or  from  one  obtaining  goods  liy  pretending  to  be 
agent    of   another.    196. 
rescission  must  be  within  reasonable  time,  197. 
on  creditors,  107. 

in    general,    197,    198. 
mutual   intent  to  defraud,   1!)0. 
voluntary  conveyance,  200. 
retention  of  possession.  197.  L'OO. 

In  some  jurisdictions,  evidence  of  fraud.  200. 

In    some  Jurisdictions,    prima   facie   evidence   of    fr.iud. 

200. 
In  some  jurisdictions,  conclusive  evidence  of  fraud,  201. 
who  are  creditors.  20.'>. 
efre<'t  of  fraud,  197,  2(l3. 
FRAUDS.  STATUTE  OF. 
see  "Statute  of  Frauds." 

FRAUDULENT  IMPERSONATION.  19C. 
see  "Fraud." 

FREIGHT, 

seller  to  pay,  effect  on  transfer  of  property,  1.')fi. 

carrier's  lien  for,  effect  on  riglit  of  stoppage  In  transitu.  X\3. 

FRUCTUS  INDUSTRIALES, 

as  subject  of  sale,  5. 

whether  within  statute  of  frauds,  see  "Statute  of  Frauds." 
FRUCTUS   NATURALES. 

see  "Statute  of  Frauds." 


512  INDEX. 

[The  figures  refer  to  pages.] 
FUTURE  GOODS, 
sale  of,  44,  46. 

FUTURES, 

see  "Illegality." 

G 

GAMING, 

contracts  by  way  of,  illegal,  217. 

GIFT, 

distinguished  from  sale,  12. 

GOLD  COIN, 

whether    goods,    wares,    and    merchandise,    within    statute    of 
frauds,  72,  note  42. 

GOODS, 

defined,    2. 
meaning  of,  4. 

GOODS,  WARES  AND  MERCHANDISE, 
see  "Statute  of  Frauds." 

GROWER, 

sale  of   specific  goods  by,  whether  implied  warranty   against 

latent  defects,  255. 
sale  by,  implied  warranty  of  fitness  for  purpose,  252,  258. 

GROWING  CROPS, 

see  "Crops." 

H 

HOUR, 

of  delivery,  279. 

I 

ICE, 

whether  goods,  wares  and  merchandise,  within  statute  of  frauds, 
80. 

ILLEGALITY, 

In   general,    208. 

classification  of  unlawful   sales,   208. 

sales  prohibited  by  common  law,  209. 

sale  of  thing  contrary  to  good  morals,  209. 

sale  of  innocent  thing  for  unlawful  purpose,  209,  210. 
sales  prohibited  by  public  policy,  209. 
sales  prohibited  by  statute,  213. 

statutes  imposing  a  penalty,  213. 

statutes  regulating  trade,  214. 

statutes  regulating  sale  of  intoxicating  liquor,  215. 

statutes  prohibiting  Sunday  sales,  215. 
ratification  of  Sunday  sales,  216. 


INDEX.  51:; 

[The  figure*  refer  to  paRos.] 

ILLEGALITY— Cont'd. 

statutes  prohibiting  wagering  cumiii.  is,   217. 
sale*  of  futures,  218. 
effect  of,  219, 

dis.illiniianco  before  execution  of  lllegul  purpose,  222. 

plaintiff  not  in  pari  delicto,  223. 

separable  contracts,  223. 
conflict  of  laws,  224. 

liirOSSIIULITY  OF  PERFORMANCE, 
In  geiM-ral  no  excuse,  305,  308. 
from  destruction  of  subject-matter  before  sale,  23. 
after  contract  to  sell,  but  before  property  luis  passed,  305,  308. 

destruction  of  suiiject-niatter  of  sale,  305,  308. 

legal  Impossibility,  30.'j,  310. 

INCORPOREAL    PROPERTY, 

whether    goods,     wares    and    merchandise,     within    statute    of 
frauds,  72. 

INFANTS, 

capacity   to  buy   and   sell.   14. 
may  avoid  sale  or  purchase,  15. 
return  of  consideration,  15. 
ratification  of  contract,  10. 
necessaries   furnished   to,   13,   17. 
liability   for,   14,   17. 
articles  included  in,  17. 
goods  supplied  for  trade  or  business,  19. 
goods  necessary  for  wife  and  children.  19. 
etTect  of  age  or  condition  or  quantity,  19. 
where  wants  are  otherwise  supplied,  19. 
province  of  court  and  jury  in  detennlniiig  what  are,  19. 
obligation  to  pay  for,  quasi-contractual,  21, 

where  note  is  given  in  payment,  21. 
liability  of  father  for,   21. 
see  "Capacity  of  Parties." 
INITIALS. 

signature  by,  in  note  or  memorandum  under  statute  of  frauds, 
111. 

INSANE  PERSONS, 
see  "Lunatics." 

INSOLVENCY, 

of   buyer,    failure   to   disclose,   -whether  constitutes   fraud.    180. 

of  buyer,  as  excusing  seller  from  i)erf(>riiianee,  ;{(>7. 

of  buyer,  revival  of  seller's  lien,  on.  312.  315.  318. 

of  buyer,  seller's  right  of  stoppage  iu  transitu,  *ee  "Stoppage  in 

Transitu." 
meaning  of.  325. 
see  "Solvency." 
Tiff.Sai.es(2d  Ed.) — 33 


514  INDEX. 

[The  figures  refer  to  pages.] 
INSPECTION, 

buyer's  right  of. 

see  "Examination." 

INSTALLMENTS, 

where  chattel  to  be  paid  for  in,  when  property  passes,  161. 
delivery  by,  287. 
see  "Delivery." 

INTENTION, 

as  to  transfer  of  property,  rules  for  ascertaining,  see  "Transfer 

of  Property." 
not  to  pay,  as  constituting  fraud,  179. 
to  warrant,  whether  essential,  236,  238. 

INTOXICATING  LIQUOR, 
sale  of,  see  "•Illegality." 

INVENTION. 

as  subject  of  sale,  4. 

before  letters  patent,  whether  goods,  wares,  and  merchandise, 
within  statute  of  frauds,  73,  note  44. 


JUS  DISPONENDI, 

reservation  of,  163. 


K 

KEY, 

delivery  of  goods  by  giving,  272. 


L 

LAND, 

interest  In,  sale  of,  under  statute  of  frauds, 
see  "Statute  of  Frauds." 

LATENT  DEFECTS, 

on  sale  by  grower,  whether  implied  warranty  against,   255. 
whether  covered  by  implied  warranty  of  fitness  for  purpose,  259. 
in  sample,  rendering  goods  unmerchantable,  263,  264. 

LEASE, 

instrument  in  form  of,  construed  as  conditional  sale,  134. 
see  "Bailment." 

LICENSE  TO   SEIZE, 

taking  possession  under,  as  constituting  delivery,  47. 

LIEN  OF   UNPAID   SELLER, 
in  general.  311,  312,  313. 
nature  of,  313. 


ixni:x.  Cir, 

[The  ngurcs  nfor  to  paces.] 

LIEN  OF  UNPAID  SHLLEK-   CuiitU 
extends  ouly  to  iirlce,  313. 
bj'   agrwinciit,  314. 
wiiivcr  of,  312,  314. 

by  f,'iving  credit,  312,  314. 

by  acceptiug  uegotiuble  Instrumeuts  In  conditional  payuieut, 
312,  314. 
revival  of,  312.  315. 

on  e.xpiratiitn  of  credit,  315. 

on  dishonor  of  instrument  accepted  in  cuuditioual  payujeut, 

315. 
on  insolvency  of  buyer,  315. 
tcniiiiiation  of,  312,  317. 

by  delivery  to  bu.ver,  317. 

wliat  constitutes  delivery,  317. 

where  goods  are  in  possession  of  seller,  313. 

as  bailee  of  buyer,  318. 
where  goods  are  in  possession  of  buyer.  318. 
where  goods  are  in  possession  of  third  person,  319. 
by  delivei-y  to  carrier,  319. 
by  assent  to  subsale,  320. 
effect  of  part  delivery,  321. 
effect  of  ju<l"«'nient  for  price,  322. 
see    "Remedies." 

LORD   TENTERDEN'S  ACT,   G4. 

LOSS, 

risk  of, 

see  "Risk  of  lx)ss." 

LUNATICS, 

capacity  to  buy  and  sell,  21,  22. 
necessaries,  13,  24. 

see  "Capacity  of  Parties." 


M 

MANUFACTURER, 

sale   of   specific    goods   by,    whether    Implied    wnrrnnty    agnlnst 

latent  defects,   255. 
sale  by,  Implied  warranty  of  fitness  for  puri»<ise,  252,  2.'>8. 

whether  implied  warranty  that  goods  are  of  seller's  manu- 
facture,  2u5. 
MARK, 

sif^nature  by,  In  note  or  meraornudum,  under  statute  of   frauds, 
111. 

MAUKIOT   OVERT, 

rules  as  to  sale  In.  2(!,  28. 


516  INDEX. 

[The  Sgures  refer  to  pagesj 
MARKET    PRICE, 

Tvhen  price  left  to  be  fixed  by,  60. 
when  unreasonable,  61. 
see  "Damages." 

MARRIED  WOMEN, 

capacity  to  buy  and  sell,  24. 
liability  of  husband  for  necessaries  of,  26. 
see  "Capacity  of  Parties." 

MASTER    OF    SHIP, 
sale  by,  29. 

MEASURE  OF  DAMAGES, 
see  "Damages." 

MEASURING, 

■when  price  is  to  be  ascertained  by,  see  "Transfer  of  Property." 

MEMORANDUM  IN  WRITING, 
see  "Statute  of  Frauds." 

MERCHANTABLENESS, 

implied  warranty  of,  see  "Warranties." 

MINERALS, 

whether    goods,    wares,    and   merchandise,   within    statute   of 
frauds,  80. 

MISREPRESENTATION, 
see  "Fraud." 

MISTAKE, 

see  "Mutual  Assent." 

MONEY, 

not  included  in  "goods,"  4. 

"MONTH," 

meaning  of,  279. 

"MORE  OR  LESS," 

meaning  of,  see  "Performance  of  Contract." 

MORTGAGE, 

see  "Chattel  Mortgage." 

MUTUAL  ASSENT, 

transfer  of  property  effected  by,  50,  51. 
mistake  affecting  mutual  assent,  52. 

mistake  as  to  subject-matter  of  sale,  53. 

mistake  as  to  price,  54. 

must  go  to  root  of  contract,  54. 
mistake  as  to  nature  of  promise  known  to  other  party,  55. 
form  of  contract,  50,  56. 
sale  by  suit,  57. 


iNPrx.  517 

[Th»  flgurei  refer  to  pa«o«.] 

MUTUAL  ASSENT— Cont'd, 

I'lTd't  of  fraud,  see  "Fraud." 
to  upproprlatlon  of  goods  to  contract,  151. 
see  "Transfer  of  PropiTty." 


N 

NECESSARIES, 

see  "Infants";  "Lunatics";  "Drunken  Men";  "Married  Women." 

NEGOTIABLE  I XSTHUMENTS, 
as  subject  of  sale,  4. 
bona  fide  purchasers  of,  26,  20. 

see  "Bill  of  Ladlus";  "Bills  and  Notes";  "Warehouse  Re- 
ceipt." 

NOTE  OR  MEMORANDIM, 
see  "Statute  of  Frauds." 

NOTICE, 

purchaser  from  fraudulent  buyer  must  be  Tvlthout,  193. 
tranferee  of  bill  of  lading  must  be  without,  to  defeat  right  of 

stoppage  In  transitu,  3;i4. 
of  stoppage  In  transitu,  see  "Stoppage  in  Transitu." 
of  intention  to  resell,  see  "Resale." 
of  defects,  370. 

see  "Bona  Fide  Purchaser." 


0 

OWNER, 

as  a  rule  no  one  but  owner  can  sell, 
see  "Who  can  Sell." 


PAROL  EVIDENCE, 
see  "Evidence." 

PARTIES, 

capacity  to  buy  and  sell.  13. 

see     "Infants";     "Lun.itlos";     "Drimken     Men';     "M.irrlod 
Women." 
who  may  sell,  see  "Who  can  Sell." 
effect  of  mistake  as  to,  52. 
names  of,  in  note  or  memorandum,  see  "Statute  of  Frauds." 

PART  DELIVERY, 

effect  on  seller's  lien,  321. 

as  terminating  transit,  see  "Stoppage  In  Transitu." 
see  "Performance  of  Contract" 


518  INDEX. 

[The  figures  refer  to  pages.] 
PAKT  PAYMENT, 

see  "Statute  of  Frauds." 

"PARTY  TO   BE  CHARGED,'* 
under  statute  of  frauds,  110. 

PATENT  DEFECTS, 
see  "Warranties." 

PAWN, 

sale  by  pawnee,  29. 

PAYMENT, 

not  essential  to  transfer  of  property,  121. 
presumption  against  credit,  123,  269,  302. 
effect  of  stipulation  for  cash  or  security,  123,  131. 
duty  of  buyer  to  pay,  268,  302. 

payment  and  delivei-y  as  concurrent  conditions,  268,  302. 
payment  in  cash,  123,  302,  30c;. 
tender  of  payment,  302. 

payment  by  negotiable  security,  conditional  payment,  302,  303. 
payment  to  agent,  304. 

part  payment  rnider  statute  of  frauds,  see  "Statute  of  Frauds." 
see    "Credit" ;    "Performance    of    contract" ;    "Actions    for 
Breach  of  the  Contract." 

PERFORMANCE  OF  CONTRACT, 

duties  of  seller  and  buyer,  268. 

delivery  and  payment  concurrent  conditions,  268. 

delivery,  in  general,  268. 

meaning  of  delivery,  269,  270. 
constructive  delivery,  271. 
symbolical  delivery,  272. 
place,  time,  and  manner  of,  in  general,  270. 
seller  not  bound  to  send  goods.  273. 
goods  in  possession  of  third  person,  274. 
place  of  delivery,  270,  275. 
time   of   delivery,   270,   277. 
reasonable  time,  270,  277. 
■when  time  is  fixed,  278. 
hour  of  delivery,  279. 
expenses  of  putting  in  deliverable  state,  280. 
delivery  of  wrong  quantity,  in  general,  281. 
of  too  much,  281. 

of  goods  mixed  with  other  goods,  281,  283. 
of  too  little,  281,  283. 
meaning  of  "more  or  less,"  "about,"  285. 
delivery  by  installments,  287. 
delivery  to  carrier,  290. 

duty  to  insure  safe  arrival,  292. 
duty   to   insure,   293. 
see  "Delivery." 


INDKX.  619 

[The  figures  refer  to  pages.] 

PERFOKMANCE  OF  (M)NTKACT— OcatU 
buyers  ri^bt  to  examine  goods,  294. 

not  dt'omod  to  have  accepted  until  reasonable  opportunity, 

294. 
•whether  rl|,?ht  oxista  where  goods  shipped  G.  U.  D.,  SJo. 
see  "Exanilnutiou." 
acceptance,  In  general,  297. 
duty  to  accept,  2r,s,  297. 
meanlnp  of.   297. 
express,   298. 
Implied.  298. 

acts   of    ownership,    20S. 
failure  to  reject,  299. 
effect  of,  .'iOO. 

whftlicr  seller  dischnr>.'od  from   UnMlity  for  breach  of 
promise  or  warranty,  3W. 
buyer's  liability   for  failure  to  accept  delivery,  301. 
see  ".\cceptjince." 
payment,  in  general,  302. 

duty  to  pay  cash,  ,302,  303. 

tender  of  payment,  3<t2. 

payment  by   negotiable  security,  conditional   payment,  302, 

303. 
payment  to  agent,  304. 
see  "Payment." 
excuses  for  nonperformance  of  conditions,  303. 
■waiver.  305. 

performance  prevented  by  other  party.  .305. 
renunciation  of  contract,  305.  300. 

■where    party    to   perform    Incapacitates    himself    from    per- 
forming, 307. 
Insolvency  of  buyer,  307. 
impossibility    of   iicrformance,    3<^),    308. 

destruction  of  subject-matter  of  sale,  305,  308. 
legal  Impossibility.  305,  310. 

see  "Conditions";  "Warranties." 

PERSONAL   PROPERTY. 

not  all  included  in  "goods,"  4. 

■whether  goods,  wares  and  merchandise  within  statute  of  frauds, 
72.  73. 

PLACE, 

of  delivery,  see  "Delivery;"  "Performance  of  Contract." 

PLEDGE, 

distinguished  from  sale,  9. 

PORTION  OF  MASS, 
sale   of,    147. 


520  INDEX. 

[The  figures  refer  to  pages.] 

POSSESSION, 

right  of,  distinguished  from  property,  6. 
sale  by   person   in,   31. 

by  vendor   in,   32. 

by  person  in  possession  of  bill  of  lading,  36. 
reservation  of  right  of,  see  "Transfer  of  Property.** 
retention  of,  as  evidence  of  fraud,  200. 

see  "Delivery." 

POTENTIAL   EXISTENCE, 

sale  of  goods  having,  see  "Subject-Matter  of  Sale." 

POWER, 

sale  under,  26,  29. 

PRE-EXISTING  INDEBTEDNESS, 
see  "Antecedent  Debt." 

PREVENTION, 

of  performance,  see  "Performance  of  Contract." 

PRICE, 

distinguishing  element  of  sale,  6. 
gift,  12. 
exchange,  12. 
mistake  as  to,  54. 
ascertainment  of,  59. 

reasonable  price,  59,  60. 
what  is  a  contract  for  the  price  or  value  of  £10  ($50),  see  "Stat- 
ute of  Frauds." 
statement  of  in  note  or  memorandum,  see  "Statute  of  Frauds." 
pasTuent  of,  not  essentlaf  to  transfer  of  property,  121. 
where  to  be  ascertained  by  weighing,  measuring  or  testing,  see 

"Transfer  of  Property." 
payment  of,  when  condition  to  transfer  of  property,  131. 
waiver  of  condition,  132. 

by  unconditional  delivery,  132. 
effect  of  conditional  delivery,  132. 
delivery  to  carrier,  133. 
lien  of  unpaid  seller  for,  see  "Lien  of  Unpaid  Seller." 
action  by  seller   for,   under   conditional    sale,    see   "Conditional 

Sale." ' 
action  for,  in  general,  see  "Actions  for  Breach  of  the  Contract." 
remedies  of  unpaid  seller  against  the  goods,  see  "Remedies." 
see  "Credit" ;   "Payment." 

PROMISES, 

dependent  and  independent,  227. 

PBOMISSORY  NOTE, 
see  "Bills  and  Notes." 


INDEX.  621 

[The  figures  reler  to  pages.] 
PROPERTY, 
delliK'd.  2. 

transfer  of,  essence  of  sale,  5. 
general,  as  distinguished  from  trpeclal,  5. 
dlstiuguislied  from  riglit  to  possession,  0. 
transfer  of  general,  distiugulsLiug  element  of  sale,  6. 
effect  of  contract  in  transferring,   see   "Transfer   of  Property." 

PROVISIONS, 

implied  warranty  on  sale  of,  bee  "WarrauUea." 

PUBLIC  POLICY, 

see  "Illegality." 

PURCHASERS, 

subsequent,    how    far    delivery    essential    to    transfer    property 
against,  liOi- 
set;  'Bona  Fide  Purcliaser." 


Q 

QUALITY, 

Implied  warranty  of,  see  "Warrautles." 

QUANTITY, 

delivery  of  wrong,  see  "Performance  of  Contract." 


K 

RATIFICATION, 
by  infants,  16. 
by  lunatics,  22. 
by  drunlieu  men,  24. 
by  married  women,  25. 

of  signature  of  agent  under  statute  of  frauds,  112. 
of  Sunday  sale,  21G,  221. 
of  stoppage  in  transitu  by  agent,  325. 

REASONABLE  TIME, 
see  "Time." 

REASONABLE  PRICE, 

see  •Price." 

RECEIPT, 

actual,  see  "Statute  of  Frauds." 

REJECTION, 

buyer's  right  to  reject  goods,  where  wrong  quantity  delivered, 

281. 
where  no  opportunity  to  examine,  294. 
failure  to  reject,  as  constituting  ac<»'ptance,  -x>»,  21K). 


522  INDEX. 

[The  figures  refer  to  pages.J 
REJECTION— Cont'd. 

right  to  reject  for  breach  of  warranty  before  acceptance,  365. 
after  acceptance,  368. 

see  "Acceptance" ;  "Warranties." 

REMEDIES, 

of  defrauded  party,  see  "Fraud." 
under  illegal  agreement,  219. 

of  seller  under  conditional  sale,  see  "Conditional  Sale." 
of  unpaid  seller  against  the  goods,  in  general,  311. 
lien,  see  "Lien  of  Unpaid  Seller." 

right  of  stoppage  in  transitu,  see  "Stoppage  in  Transitu." 
right  of  resale,  see  "Resale." 
right  to  rescind,  see  "Rescission." 
of  seller  for  breach  of  contract,  see  "Actions  for  Breach  of  the 

Contract." 
of  buyer  for  breach  of  contract,  see  "Actions  for  Breach  of  the 
Contract." 

RENUNCIATION  OF  CONTRACT, 

in  general,  305,  306. 

by  buyer,  damages  for  nonacceptance,  350. 

see  "Actions  for  Breach  of  the  Contract" 
by  seller,  damages  for  nondelivery,  355. 

see  "Actions  for  Breach  of  the  Contract." 

REPUDIATION  OF  CONTRACT, 
see  "Renunciation  of  Contract." 

RESALE, 

contract  for,  within   statute  of  frauds,   71. 

unpaid  seller's  right  of,  where  he  lias  right  of  lien  or  has  ex- 
ercised right  of  stoppage  in  ti-ausitu,  311,  339. 
in  England,  339. 
in  United  States,  339. 

duties  in  making  resale,  340. 
notice  of  intention  to  resell,  341. 
notice  of  sale,  341. 
under  contract  to  sell,   where  buyer  wrongfully  refuses  to  ac- 
cept, 350. 

RESCISSION, 

right  of,  for  fraud  inducing  contract  of  sale,  see  "Fraud." 

right  of  creditors  to  avoid  sale  for  fraud,  see  "Fraud." 

banki-uptcy  of  buyer,  not,  3.30. 

by  consent,  when  buyer  insolvent,  330. 

exercise  of  right  of  stoppage  in  transitu,  not,  338. 

right  of,  by  unpaid  seller,  where  he  has  right  of  lien  or  has  ex- 
ercised right  of  stoppage  in  transitu,  311,  342. 

where  property  has  passed  and  goods  have  been  delivered,  seller 
may  not  rescind,  345. 

by  seller,  where  buyer  repudiates,  353. 


INDKX.  C23 

(Tta«  figures  refer  to  pages.] 
RESCISSION— Cont'd. 

by  buyer,  for  failure  of  considpnitlon,  ."JO.!, 
buyer's  ri^rlit  of,  for  !)re!ich  of  wiirninty,  305,  308. 
before  juveptiiiic*'.  ;{t»r»,  307. 
after  lux-eptance,  3(;8. 

RESTITITIO  IN  INTKGUUM,  191. 

RETURN. 

sale  or,  lit.  145. 

RIGHT  OF  DISPOSAL. 

reservation  of.  see  "Transfer  of  Property." 

RISK  OF  LOSS. 

aocouipaiiies  transfer  of  property.   1123. 

as  a  rule  attaehes  to  ownersbip  of  goods,  141. 

on  sale  on  approval,  142. 

on  sale  or  return,  142. 
may  be  fixed  by  agreement,  142. 
under  conditional  sale,  142. 
destruction  of  spedHc  goods  before  risk  passes  to  buyer,  305,  808. 

see  "Destruction  of  Subject-Matter  of  Sale." 


s 

SALE. 

defined,  1. 

how  effected.   2. 

distinguished  from  contract  to  sell.  2. 

contract  of,  3. 

executed  and  executory,  distinguislie<l,  3. 
subject  of.  4. 
goo(]s.  4. 
distingnislied  from  other  transactions.  6. 

where  general  property  Is  not  transferred.  6. 
bailment,  6. 

deposit  of  grain  in  elevator,  whether  sale  or  bail- 
ment.   7. 
•with  option  to  buy,  8. 
pledge.  9. 

chattel  mortgai:e.  9. 
agency  to  sell.  10. 
agency  to  buy.  11. 
where  transfer  is  not  for  a  price.  12. 
gift.  12. 
exchange.  12. 
contract  for  work.  I.ihor.  and  materials.  13. 
who  can  sell,  see  "Who  can  Sell." 
subject-matter  of  sale,  see  "Subject-Matter  of  Sale." 


524  INDEX. 

[Tk^  figures  refer  to  pages.] 
SALE— Cont'd. 

mutual  assent,  see  "Mutual  Assent" 

form  of  <x)utract,  50,  56. 

under  statute  of  frauds,  see  "Statute  of  Frauds." 

transfer  of  property,  see  "Transfer  of  Property." 

contract  of,  induced  by  fraud,  see  "Fraud." 

fraudulent  against  creditors,  see  "Fraud," 

Illegal,  see  "Illegality," 

SALE  OF  GOODS  ACT, 

English,  413. 

SALE  ON  APPROVAL  OR  TRIAL,  143,  144. 

SALE  OR  RETURN,  143,  145. 

SALES  ACT, 

proiwsed  American,  380. 

SALE  "TO  ARRIVE,"  235. 

SAMPLE, 

implied  warranty  in  sale  by,  see  "Warranties." 

acceptance  and  receipt  of,  to  satisfy  statute  of  frauds,  82,  84. 

SATISFACTION, 

sale  on,  see  "Sale  on  Approval  or  Trial." 

SATISFACTORY, 

sale  of  goods  to  be,  234. 

see  "Sale  on  Approval  or  Trial." 

SEEDS, 

implied  warranty  on  sale  of  by  description,  251,  note  120,  255, 
note  140. 
damages  for  breach  of  warranty,  378. 

SELLER'S  LIEN, 

see  "Lien  of  Unpaid  Seller." 

SEPARABLE  CONTRACT, 
see  "Divisible  Contract." 

SEPARATION, 

when  necessary  to  pass  property,  147. 
see  "Transfer  of  Property." 

SET-OFF, 

agreement  to,  whether  payment,  under  statute  of  frauds,  99. 

SHARES  OF  STOCK, 

whether   goods,    wares,    and    merchandise,    within    statute    of 
frauds,  72. 

SHIP, 

delivery   on   buyer's,   whether   precludes   right  of   stoppage   in 
transitu,  327. 
on  chartered  ship,  328. 


INDEX.  .•_.» 

[The  figures  refer  to  page*.] 

SIGNATURE  OF  PAKTY. 

In  note  or  uicnioraiuliiiii,  see  "Statute  of  Fnnids." 

SOLD  NOTE, 

of  broker,  as  nxMiiorandum  under  statute  of  frauds,  115. 

SOLVENCY, 

false  representation  by  buyer  as  to,  ISl. 
see  "Insolvency." 

SPECIAL  DAMAGES, 
see  "Damages." 

SPECIAL  PROPERTY, 

distinguisLed  from  general  property,  S. 
passes  on  bailment,  0. 

SPECIFIC  PERFORMANCE, 

action  by  buyer  to  enforce,  see  "Actions  for  Breach  of  the  Con- 
tract." 

STATUTE  OF  FRAUDS, 
In  general,  62. 
what  contracts  are  within  statute,  02. 

executed  and  executory  contracts,  G2,  03. 
contract  of  sale,  or  contract  for  work,  labor,  and  materials, 
English  rule,  G2.  G4. 
Massachusetts  rule,  03,  06. 
New  York  rule,  63.  07. 
rule  elsowht-re   in    United   States,  01). 
chattel  Intended  for  fixture,  70. 
auction  sales,  71. 
contract  for  exchange,  71. 
contract  for  resale,  71. 
what  Is  an  interest  in  laud,  73. 

what  are  goods,  wares,  and  merchandise.  In  general.  72. 
incori)oreal   property,   choses   in   action,  72. 
fructus  natural'-s  and  fructus  Industriales.  72.  74. 
removable  fixtures,  72,  78. 
minerals,   SO. 
Ice,  SO. 
what  is  a  contract  for  price  or  value  of  £10  (.?50),  80. 

entire  contract  for  sale  of  g«MKls  and  other  objtvfs,  80. 
entire  contract  for  sale  of  different  goods,  joint  value  ex- 
ceeding statutory  amount,  81. 
entire  contract  for  sale  of  ^'oods  of  unascertained  value,  after 
wards  ascertained  to  excee<l,  81. 
acceptance  and  receipt.  In  general,  82. 
of  part,  sample,  82,  84. 
acceptani'o,  in  general,  85. 

constructive  acceptance,  85,  bo. 


526  INDEX. 

[The  figures  refer  to  pages.] 

STATUTE   OF   FRAUDS— Cont'd. 

whether  acceptance  must  be  in  performance  of  contract, 
in  England,  85,  89. 
in  United  States,  85,  91. 
actual  receipt,  in  general,  93. 
by  agreement,  93,  94. 

when  goods  are  in  possession  of  seller,  94. 
when  goods  are  in  possession  of  third  person,  96. 
when  goods  are  on  premises  of  third  person,   not 

bailee,  97. 
when  goods  are  in  possession  of  buyer,  97. 
earnest  and  part  payment,  in  general,  98. 
earnest,  98. 
part  payment,  98. 
note  or  memorandum,  in  general,  100. 

difference  between  contract  in  writing  and  note  or  memo- 
randum, 100. 
note  or  memorandum  in  the  nature  of  an  admission,   101. 
what  note  or  memorandum  must  contain,  names  of  parties, 
100,  102. 
price,   104. 

subject-matter  and  other  terms,  105. 
parol  evidence  to  show  that  writing  is  not  a  note  or  memo- 
randum, 107. 
parol  evidence  as  to  subsequent  agreement  to  modify  original 

contract,  107. 
separate  papers,  108. 
signature  of  party,  110. 
agents  authorized  to  sign,  112. 
who  may  be  agent,  113. 
auctioneer,    113. 
broker,  115. 
effect  of  noncompliance  with  the  statute,  117. 

STOCK, 

shares  of,  whether  goods,  wares,  and  merchandise,  within  statute 
of  frauds,  72. 

STOPPAGE  IN  TRANSITU, 

right  of,  in  general,  322,  323. 

founded  on  mercantile  usage,  323. 

arises  on  insolvency  of  buyer,  323. 
who  may  exercise  right  of,  322,  324. 

person  in  position  analogous  to  that  of  unpaid  seller,  324. 

consignor  or  factor,  324. 

agent  of  seller,  324. 

surety,  324. 

principal  consigning  to  factor,  324. 

agent  on  behalf  of  seller,  325. 


iM>i:x.  527 

[The  figures  rerer  to  pages.] 

STOPrAGE   IN  'JKAXSITL— Lunld. 

effect  of  partial  iiayiiRMit  ou  riylit,  ."Jl'u. 
effect  of  condltioual  iKiyiiu-iit  ou  riKlU,  li'2o. 
against  whom  right  may  l>i>  exercised,  SJri. 
buyer  who   is   lusolveut,  .i2o. 
meauiug  of  iiu^olveucy,  UL'Ci. 
stoppage  bi'fore  insolvency,  li2o. 
Insolveucy  existing  at  time  of  sale.  .120. 
right  sui)eri(>r  to  claims  of  persons  cluiuiiug  under  buyer,  320. 
right  sultject  to  lien  of  carrier,  3110. 
right  only  against  goods,  31iU. 
meaning  of  transit,  '6'2'S,  3Si. 

goods  must  be  in  possession  of  middleiuuo,  'S21. 
delivery  on  buyer's  ship,  327. 

ou  chartered  ship,  328. 

terminatiou  of  transit,  323,  327. 

delivery  to  buyer,  329. 

failure  to  take  delivery,  329. 

deliverj-  of  part,  330. 

obtaining  delivery  before  destination,  3.''.0. 
delivery  after  bankruptcy,  330. 

delivery  to  assignee,  3.30. 

delivery  to  insolvent  buyer,  330. 
delivery   to  agent,  331. 

agent  to  fonvard  to  buyer,  330. 

agent  to  hold  for  buyer,  331. 
attorunient  of  carrier,  332. 

effect  of  maintenance  of   carrier's  lien.   P.tiX 
wrongful  refusal  of  carrier  to  deliver,  3X\. 
how  right  may  be  defeated.  323,  33.3. 

transfer  of  bill  of  lading  to  liona   fide  purchaser,  .33.3. 

purchaser  must  take  without  notice  of  insolvency,  333. 

or  of  facts  rendering  bill  not  fairly  as.slgnable.  3.'J.3. 

effect  of  transfer  after  notice  of  stoppage  to  carrier,  333. 

transfer  must  be  fi>r  value.  .33"). 

antecedent  debt  sullicient,  335. 

transfer  by  way  of  pledge  or  mortgage,  330. 
how  stoppage  Is  effected,  323.  337. 
by  taking  actual  possession.  337. 
by  notice  to  carrier  or  bailee  In  possession,  337. 

notice  to  principal,  .337. 

dutj'  to  redeliver  ui)on  notice,  337. 
effect  of  stoppage,  322,  33S. 
see  "Remedies." 

SUBJECT-MATTKR  OF   SALE, 
existence  and  ownership,  44. 

gooils  which  have  ceas«>d  to  exist.  4.''>. 
sale  of  goods  not  owned  by  .seller.  4t>. 


528  INDEX. 

[The  figures  refer  to  pages.] 

SUBJECT-MATTER  OF  SALE— Cont'd. 

sale  of  goods  not  yet  in  existence  or  acquired,  44,  46. 
goods  having  potential  existence,  44,  47. 
rule  in  equity,  44,  48. 
wagering  contract,  49,  218. 
sale  of  chance,  49. 
effect  of  mistake  as  to,  53. 

destruction  of,  see  "Destruction  of  Subject-Matter  of  Sale.'* 
see  "Illegality." 
SUBSALE, 

by  buyer,  effect  on  lien  of  unpaid  seller,  320. 
special  damages  for  loss  of  profits  of,  359. 

SUBSEQUENT  APPROPRIATION, 
see  "Transfer  of  Property." 

SUBSEQUENT  PURCHASERS, 

see  "Bona  Fide  Purchasers" ;  "Purchasers." 

SUIT, 

sale  by,  57. 

SUNDAY, 

when  day  for  delivery  falls  on,  279. 

SUNDAY  SALES, 
see  "Illegality." 

SURETY, 

who  has  paid  price,  right  of  stoppage  in  transitu,  334, 

SUSPENSORY  CONDITIONS,  233. 

SYMBOLICAL  DELIVERY, 
what  is,  272. 

T 

TENDER, 

actual,  need  not  be  shown  in  action  on  contract,  2G9. 
of  payment,  302. 

TERMINATION, 

of  lien,  see  "Lien  of  Unpaid  Seller." 
of  transit,  see  "Stoppage  in  Transitu." 

TERMS  OF  SALE, 
mistake  as  to,  54. 

note  or  memorandum,   must  contain  under   statute  of  frauds, 
100,  105. 

TESTING, 

where  price  to  be  ascertained  by,  see  "Transfer  of  Property." 

THING  SOLD, 

see  "Subject-Matter  of  Sale." 


INDEX.  52l> 

[The  figures  reler  to  pages.] 
TIME, 

for  approval,  under  sale  on  approval  or  trial,  14.'').  144. 
for  return,  under  sale  or  return,  144,  14."). 
for  delivery,  In  performance  of  contract,  270. 
when  no  time  is  fixed,  reasonable  time,  277. 
what  is  reasonable  time,  277. 
when  notice  is  necessary,  277. 
when  time  is  fixed,  278. 

stipulation  as   to,  when  of  essence,  278. 
meaning  of  month,  279. 
days,  how  counted,  279. 
when  last  day  Sunday,  279. 
hour  of  delivery,  279. 
for  acceptance  of  goods,  297. 

failure  to  reject  within  reasonable  time,  299. 
what  is  reasonable  time,  299. 
where  time  is  fixed,  299. 

whether  acceptance  waives  damages  for  delay  in  delivery, 
300. 
TITLE, 

implied  warranty  of,  see  "Warranties." 

transfer  of,   see  "Bona   Fide  Purchasers";   "Transfer  of  Prop- 
erty" ;  "Who  can  Sell." 

TRADE, 

statute  regulating,  see  "Illegality." 

TRANSFER  OF  PROPERTY, 

sale  of  specific  goods,  in  general,  119. 
executed  and  executory  sales,  119. 
property  transferred  when  parties  intend,  119. 
intention,  how  ascertained,  119,  120. 
delivery  not  essential,  120. 
rules  for  ascertaining  intention,  121. 

where  contract   is  unconditional   and  good.s   in  de- 
liverable state,   121. 
payment  of  price  not  essential,  122. 
effect  of  stipulation  for  payment  in  cash  or  by 
securitj-,  124. 
where  goods  are  to  be  put  into  deliverable  state, 
121,  125. 
contract  to  sell  unfinished  chattel.  127. 
goods  to  be  delivered  at  particular  place,  12 •. 
where  price  is  to  be  ascertained  by  weiiiliiiig.  measur- 
ing, or  testing,  121,  127. 
reservation  of  right  of  possession  or  property,  130. 
in  general,  130. 

where  property  and  right  of  possession  are  to  pass  on 
payment,  131. 
Tiff.Sales(2d  Ed.)— 34 


530  INDEX. 

[The  figures  refer  to  pages.] 

TRANSFER  OF  PROPERTY— Cont'd. 

waiver  of  condition  by  unconditional  delivery,  132. 
effect  of  conditional  delivei'y,  132. 
so-called  "conditional  sales."  133. 

conditional   sale  distinguished   from   other   transac- 
tions, 134. 
effect  of  conditional  sale,  135. 
remedies  of  seller  under  conditional  sale,  13S. 
risk  of  loss,  141. 

see   "Conditional    Sale." 
sale  on  approval  or  trial,  143,  144. 
sale  or  return,  144,  145. 
sale  of  goods  not  specific,  in  general,  147. 

uo  property  passes  until  goods  are  ascertained,  147. 

when  property  in  undivided  share  may  be  transferred, 

147,  148. 
elevator  cases,  150. 
subsequent  appropriation,  in  general,  151,  152. 
how  effected,  151,  153. 

rules  for  ascertaining  intention  as  to  time  when  prop- 
erty is  to  pass,  151. 
appropriation  by  act  of  seller,  153. 

authority  to  make  appropriation,  how  conferred,  153. 
by  delivery  to  carrier,  155. 

delivery  to  carrier  as  agent  of  buyer,  156. 
where  seller  is  to  deliver  at  destination,  156. 
where  goods  are  shipped  C.  O.  D.,  157. 
other  forms  of  appropriation  by  act  of  seller,  158. 
putting  goods  in  buyer's  sacks,  158. 
inooi-poratiug  materials  with  buyer's  property, 
158. 
seller  must  act  in  conformity  with  authority,  159. 
goods  must  conform  with  description,  159. 
shipment  must  conform  with  authority,  159. 
goods  must  be  quantity  ordered,  159. 
appropriation  by  act  of  buyer,  160. 
goods  made  to  order.  160. 
chattel  to  be  paid  for  in  installments  as  work  progresses, 

101. 
reservation  of  right  of  possession  or  property,  162. 
in  general,  302,  163. 
right  of  disposal.   163. 
by  bill  of  lading,  162.  163. 

bill  of  lading  to  seller  or  order,  162.  165. 
bill  of  lading  to  buyer  or  order.  162.  168. 
dealing  with  bill  of  lading  to  secure  price,  162, 
169. 


INDEX.  531 

[The  fl(turc8  refer  to  pagM.] 

TRANSFER  OF  PRorKKTY— Cont'd. 

how  far  delivery  is  essential  to  transfer,  against  creditors  and 
purchasers,  204. 
what  constitutes  delivery,  200. 

TRANSIT, 

see  "Stoppage  In  Transitu." 

TREES, 

standing,  as  subject  of  sale,  4. 

whether  within  statute  of  frauds.  74. 

TRIAL, 

sale  on, 

see  "Sale  on  Api»roval  or  Trial." 

u 

UNASCERTAINED  GOODS, 

when  property  passes,  see  "Transfer  of  Property." 
UNCONDITIONAL  SALE, 

where  contract  unconditional,   If  goods  specific  and  In  deliver- 
able state,  property  passes,  121. 
see  "Conditions";   "Conditional    Sale";   "Transfer  of   Prop- 
erty." 

UNDIVIDED  SHARE, 

transfer  of  property  In,  147. 

UNLAWFUL  SALES, 
see  "Illegality." 

UNPAID   SELLER, 

rights  of  against  goods,  see  "Renw^dies." 
USAGE, 

whether  warranty  Implied  from,  '.'."ii;. 

V 

VALUATION, 

price  to  be  fixed  by,  00. 

VALUE, 

what  is  a  contract  for  the  price  or  value  of  £10  (^r/)),  see  "Stnt- 

uto   of    Frauds." 
lulsrcpresontation  as  to.  whether  fraudulent,  17G. 
whether  antecedent  debt  constitutes,  in  punliase  of  title  voidable 

for  fraud,  194. 
whether  for  transfer  of  bill  of  lading  to  defeat  right  of  stoppage 

in  transitu,  335. 
market  value,  see  "Price"  and  "Dai)i.iL'<'<i." 
see  "Rona  Fide  Purchnwr." 


632  INDEX. 

[The  figures  refer  to  pages.] 

VENDOR  IN  POSSESSION, 
sale  by,  32. 

VENDOR'S  LIEN, 

see  "Lien  of  Unpaid  Seller." 

VOIDABLE  TITLE, 
sale  under,  27,  43. 
see  "Fraud." 

VOLUNTARY  CONVEYANCE, 

in  fraud  of  creditors,  200. 

w 

WAGERING  CONTRACT. 

contract  to  sell  for  future  delivery,  in  general,  not,  49. 

whether  illegal,  213,  217. 

contract  to  sell  for  future  delivei-y,   when  illegal  as,  213,  218. 

WAIVER, 

of  condition  of  payment,  132. 

of  default  on  conditional  sale,  139. 

of  condition,  226,  231. 

acceptance  of  goods,  whether  waiver  of  claim  for  damages  for 

breach  of  promise  or  warranty,  300. 
of  performance  of  conditions,  305. 

of  seller's  lien,  see  '"Lien  of  Unpaid  Seller."  ' 

waiver   of  performance   of   condition  and   election  to   treat   as 

breach  of  warranty,  231,  372. 

WAREHOUSE  RECEIPT, 

in  some  jurisdictions  declared  negotiable  by  statute,  35.  319. 
under  factors'  acts,  41. 

transfer  of,  whether  constitutes  delivery,  272. 
In  some  jurisdictions  treated  as  on  same  footing  as  bills  of  lad- 
ing, 273,  319. 

WARRANTIES, 

conditions  and  warranties,  in  general,  226,  228. 

term  "warranty"  used  with  different  meanings.  226,  228. 

nonperformance  of  condition,  when  may  be  treated  as  breach 
of  warranty,  226,  231. 

fulfillment  of  warranty,  when  a  condition,  226,  231. 
In  general,  236. 
express,  236. 

parol  evidence  to  prove,  when  contract  in  writing,  237. 

intention  to  warrant,  23G,  238. 

fact  or  opinion,  240. 

known  defects,  241. 

future  events,  242. 


inim:x.  6.'>:'. 

fTIic  flgurcH  refer  lo  pages.] 

W.UtllANTIKS     ("until, 
liuiilictl,  'S'A'k 

Of  titlo.  212. 

In  Kii;:liiml.  SH. 
In  AuRTica.  L'4.'5. 
none  In  ollicial  salus,  PA\. 
natiiro  of,  '24'}. 

renH'dii's  of   buyir   lor   broadi.  21.". 
rlKht  to  roJo<'t.  21.'>. 

recovery  as  on  failure  of  consideration.  24.'). 
recovery  of  damages,  24r). 
when  action  for  breach  accrues,  240. 
In  sale  by  description.  247. 
nile  In   En^iland,  247. 
rule  In  United  States,  2."/). 
of  quality,  252. 

caveat  emptor,  25,3. 

whether  may  be  implied  from  usa^'f.   2.53. 

sale  of  si>eelfle  chattel.  255. 

of  fitness  for  puri'ose.  252,  2.5f>. 

whether  rule  ai)plies  to  dealers  as  well  as  to  manu 

facturers  and  growers,  258. 
latent   defects,    2.59. 
of  nierchantibleness,  252,  200. 

deterioration  of  goods  in  transit,  201. 
In  sale  of  provisions,  2G1. 
In  sale  by  sample.  202. 

wIhmi  sale  is  by  sample,  2G3. 
In  sale  by  manufacturer.  205. 
fuitillment  of  warranty  a  condition,  2('>5. 
whether  express  excludes  implied  warranty,  205. 
whether   acceptance   of   goods   discharges   seller    from    liability 

for  breach  of,  300. 
breach  of.  305,  ."'.OS, 

rights  of  buyer  before  acceptance.  305. 

right  to  reject,  implied  warranty,  .".t>5. 
express  warranty.  .300. 
action  for  da  in  ages.  3t]7. 
right  to  rescind,  307. 
rights  of  buyer  after  accept. i nee,  .'ios, 
right  to  rescind,  .3r»S. 
action  for  damages,  370. 
express  w.'irranty.  :'.70. 
implied  warranty.  .".72. 
diminution   of   damages,   recoupment,   .".71. 
cross  action.  370. 
counterclaim,  370. 


534  INDEX. 

[The  Ggures  refer  to  pages.] 

WARRANTIES— Coufd. 

measure  of  damages,  3G8,  377. 
special  damages.  378. 
see  "Conditions." 

WEIGHING,  MEASURING,  OR  TESTING, 

where  price  is  to  be  ascertained  by,  see  "Transfer  of  Property." 
WEIGHTS,  MEASURES,  AND  SCALES, 

statutes  requiring  to  be  approved  or  sealed,  lil4. 
see  "Illegality." 

WHO  CAN   SELL, 

as  a  rule,  no  one,  except  owner,  20,  27. 
exceptions,  26. 

sale  in  market  overt,  20.  28. 
negotiable  instruments,  27,  29. 
sale  under  power,  27,  29. 
estoppel,  27,  30. 

sale  by  person  in  possession  of  goods.  31. 
sale  by  vendor  in  possession.  32. 

sale  by  person  in  possession  of  bill  of  lading,  33,  36. 
factors'  acts,  27,  38. 
in  England,  38. 
in  United  States,  41. 
sale  under  voidable  title,  27.  43. 

see  "Bona  Fide  Purchaser" ;  "Capacity  of  Parties." 

WORK,  LABOR,  AND  MATERIALS, 

contract  for,  13. 

distinguished  from  sale.  13. 
contract  for,  as  distinguished  from  contract  of  sale,  within  stat- 
ute of  frauds,  see  "Statute  of  Frauds."  • 

WRITTEN  CONTRACT, 

distinguished    fromi    note    or    memorandum,    under    statute    of 
frauds.  100. 


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